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Decision No. 17,388

Appeal of CATHERINE NAPPI from action of the Board of Education of the South Country Central School District regarding a voter proposition and application for removal of Chris Picini, Carol Herrmann, Antoinette Huffine, Rocco DeVito, Lisa DiSanto, Julio Morales, Danielle Skelly, Rob Powell, and Allison Stines, as board members.

Decision No. 17,388

(May 14, 2018)

Guercio and Guercio, LLP, attorneys for respondent board, John P. Sheahan, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from the action of the Board of Education of the South Country Central School District (“respondent”) rejecting a voter proposition to reduce the minimum distance for transportation on the ballot at the May 19, 2015 annual district meeting and election.  Petitioner also seeks the removal of Chris Picini, Carol Herrmann, Antoinette Huffine, Rocco DeVito, Lisa DiSanto, Julio Morales, Danielle Skelly, Rob Powell and Allison Stines as members of the Board of Education of the South Country Central School District.  The appeal must be dismissed and the application must be denied.

This is the third in a series of similar appeals brought by petitioner to challenge respondent’s failure to place her voter proposition to reduce the minimum transportation mileage limit for providing student transportation to zero (the “universal busing proposition”).  In Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300 (“Appeal of Nappi I”), petitioner’s appeal from respondent’s failure to place her transportation proposition on the ballot at the May 2012 annual meeting was dismissed on procedural grounds.  In Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,387 (“Appeal of Nappi II”), petitioner’s appeal and application for removal of board members was also dismissed on procedural grounds.

On or about January 13, 2015, in anticipation of submitting a voter proposition reducing the minimum transportation mileage limit, petitioner submitted a Freedom of Information Law request for the number of students walking to school, the number of buses required to transport such students and information relating to the cost of providing such transportation and the tax rate.  In a letter dated February 19, 2015, the district clerk provided petitioner with the requested information, with the exception of the tax rate, which she indicated had not yet been set.  The letter stated that the cost for eight additional buses would be $564,602.40 and the cost for nine additional buses would be $635,177.70.  

On or about April 4, 2015, petitioner submitted a petition for a proposition to reduce the minimum transportation mileage limit from one-half to one and one-half miles, depending on grade level, to zero for pupils at all grade levels and to provide for an appropriation of “$564,602.40(8) - $635,177.70(9)” for the cost of such transportation.  It further stated that the cost to the average homeowner was approximately “$1.0020% per $100 of assessed valuation for 2015” [sic] and included a notice that the proposition “may bring about a super majority.”

The universal busing proposition was discussed by respondent in executive session at its April 15, 2015 meeting, but no motion was made to approve the proposition and no action was taken at that time.  On April 22, 2015, respondent voted unanimously to reject petitioner’s universal busing proposition.  This appeal was commenced by service of the petition upon the district clerk on May 18, 2015, the day before the annual district meeting and election. The application for removal was commenced by service of the petition on respondents Herrmann and Morales on May 16, 2015, on respondent Huffine on May 18, 2015, on respondents DiSanto, Skelly, Picini, Powell and DeVito on May 19, 2015 and on respondent Stines on May 20, 2015. Petitioner’s request for interim relief was denied on May 27, 2015. 

Petitioner contends that the petition to have the proposition placed on the ballot was properly submitted to respondent board and that the proposition is within the power of the voters.  Petitioner contends that the individual board members should be removed from office for wilful misconduct or neglect of duty in failing to put her transportation proposition on the ballot and, thereby, violating the rights of petitioner and the voters who signed the petition for the universal busing proposition.  Petitioner seeks either interim relief to compel respondent to place her proposition on the ballot at the May 2015 annual meeting or postponing the annual meeting until that can occur, or an order directing that a special district meeting be held for a vote on the universal busing proposition.

Respondent asserts that the appeal and application must be dismissed because the notice of petition and petition are not properly endorsed in accordance with 8 NYCRR §275.4.  Respondent contends that petitioner lacks standing to assert claims on behalf of district voters.  Respondent further contends that the appeal must be dismissed as moot, both because the annual district meeting was held on May 19, 2015 and no further meaningful relief can be granted and because petitioner’s claims were previously resolved in Appeal of Nappi I and Appeal of Nappi II.  Respondent also contends that the appeal and application must be dismissed as untimely to the extent petitioner complains about actions or omissions that occurred more than 30 days prior to commencement of this appeal.

Respondent asserts that the universal busing proposition was defective as a matter of law and need not have been placed on the ballot, that petitioner has failed to state a claim upon which relief may be granted, that its actions were in all respects appropriate and neither arbitrary nor capricious, and that petitioner has failed to sustain her burden of establishing a clear legal right to the relief she seeks.  Respondent also asserts that it properly rejected the proposition, arguing, among other things that: the proposed proposition is ambiguous and misleading in that it is phrased in terms of a request to the district to reduce its current minimum mileage to zero; that it erroneously states that it “does not affect the busing currently in district” when, in fact, the addition of eight or nine buses would alter the bus stops and pick-up times of many district students; and that the proposition erroneously indicates that the cost to the average taxpayer would be 1.0020 percent per $100 of assessed valuation, when such number actually reflects only the state-determined tax base growth factor.  Respondent further argues that the proposition was misleading in that it did not include the language required under Education Law §2023-a(6) to apprise voters that the proposition, in combination with the other propositions on the ballot, would result in the budget exceeding the State tax cap and must be approved by 60 percent of the qualified voters present and voting.  Respondent further contends that, to the extent petitioner alleges violations of her civil rights or the Open Meetings Law, an appeal to the Commissioner is not the proper forum to adjudicate such claims.  Respondent also claims that petitioner acted in bad faith in seeking to place the proposition on the ballot, usurping its authority as board.

Respondent contends that the application for removal must be denied as moot with regard to Powell, because he is no longer a board member.  Respondent contends that the application for removal also must be denied for failing to include the notice required by 8 NYCRR §277.1 and because petitioner failed to properly join the individual board members, who are necessary parties, as respondents.  

There are several procedural issues that must be addressed. Respondent objects to petitioner’s reply papers, contending that they are not properly verified, improperly buttress allegations in the petition, raise new allegations and demand relief not included in the petition.  Respondent also contends that petitioner’s memorandum of law must be rejected to the extent that it belatedly adds assertions and requests relief not included in the petition.

Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal be verified. Respondent is correct that the reply, which is a pleading, does not include a verification in the form prescribed by 8 NYCRR §275.6.  In this case, the reply includes petitioner’s notarized signature at the end, but does not include any language attesting to the truth of the facts contained therein.  However, merely notarizing a signature in a pleading does not constitute verification of that pleading (Appeal of J.L., 41 Ed Dept Rep 62, Decision No. 14,615; Appeal of J.N., 40 id. 244, Decision No. 14,472; Appeal of Shabazz, 38 id. 481, Decision No. 14,076).  Because the reply does not include any language attesting to the truth of the factual allegations, I find that petitioner’s reply is not properly verified (cf., Appeal of A.L.P., 43 Ed Dept Rep 320, Decision No. 15,006 [petition which included language attesting to the truth of the allegations coupled with a notarized signature substantially complied with the verification requirement of 8 NYCRR §275.5]).  Therefore, I have not considered petitioner’s reply in deciding this appeal. 

Simultaneously with her reply, petitioner submitted a document entitled “Verified Reply to Verification” and four other documents - three entitled “Verified Reply to the Affidavit in Opposition to Petition and in Support of the Verified Answer” and one entitled “Verified Reply to the Affirmation in Support of the Verified Answer” that purport to reply to allegations in four affirmations or affidavits submitted by respondent in support of its answer.  These documents are a blend of legal arguments that should be included in a memorandum of law and purported replies to respondent’s affirmations and affidavits that explicate affirmative defenses set forth in the answer.  Upon application of a party, the Commissioner may permit the service and filing of additional pleadings for good cause shown; such application must state the reasons why the additional pleadings are necessary (8 NYCRR §275.3[b]).  Petitioner failed to seek or obtain prior approval for the submission of these additional replies and I find no basis for concluding that additional replies are necessary.  Thus, I decline to accept them.  Moreover, similar to the first reply, these additional replies are not verified and must be rejected on that basis as well.

In any event, the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, even if the replies were not rejected for the reasons stated above, I would not have considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer. 

Respondent also contends that petitioner’s memorandum of law must be rejected to the extent that it adds belated assertions and requests relief not included in the petition.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Accordingly, while I have accepted petitioner’s memorandum of law, I have not considered any new allegations or requests for relief not included in the petition.[1]

Respondent argues that the appeal and application must be dismissed because the notice of petition and petition do not comply with 8 NYCRR §275.4(a), which requires that all pleadings and papers be endorsed with the name, post office address and telephone number of the submitting party.  Specifically, respondent asserts that petitioner has not included her telephone number on her papers and, instead, has substituted her email address.  For the reasons I rejected this argument in Appeal of Nappi I and Appeal of Nappi II, I decline to dismiss the appeal on this basis.  When a petitioner is not represented by counsel, a liberal interpretation of §275.4(a) is appropriate, particularly where, as here, there is no evidence of prejudice to the respondent (Appeal of DeGroff, et al., 31 Ed Dept Rep 332, Decision No. 12,657).  Petitioner has provided her email address, which enables respondent to contact her.  In this appeal, petitioner alleges that she has no telephone, and respondent has provided no evidence to the contrary.  Under the circumstances, on this record, I find that petitioner has substantially complied with §275.4 and was unable to strictly comply with that regulation.  Therefore, I decline to dismiss the appeal based on, at most, a technical violation of the regulation (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,387; Appeal of Nappi, 57 id., Decision No. 17,300; Appeal of Fillie-Faboe, 34 id. 643, Decision No. 13,438; Appeal of DeGroff, et al., 31 id. 332, Decision No. 12,657).

Respondent asserts in its answer that that petitioner lacks standing to assert claims on behalf of district voters. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  In Appeal of Nappi I and Appeal of Nappi II, I determined that petitioner had standing as a qualified voter to maintain such appeals.  As I stated in both Appeal of Nappi I and Appeal of Nappi II, Education Law §§2021(19), 2008(2), 2035(2) and 3635(1) confer a right on qualified voters to determine whether to provide transportation beyond that required by statute and to submit voter propositions to change the minimum or maximum mileage limitations for transportation.  Thus, “[t]he power to provide transportation beyond that required by Education Law §3635 is a power reserved to the voters” (Appeal of Powell, 46 Ed Dept Rep 565, Decision No. 15,597) and the denial of the right to vote on an expanded transportation policy confers standing on a qualified voter (Appeal of Wenger, 37 Ed Dept Rep 5, Decision No. 13,790).  Petitioner, a qualified voter, submitted the universal busing proposition on behalf of the other qualified voters who signed the petition.  Thus, although respondent correctly asserts that she may not assert the rights of others, petitioner has standing to maintain this appeal and application in her own right as a qualified voter in the district.

Petitioner’s application for removal of the individual board members must be dismissed as moot with respect to those board members who no longer serve on the board of education.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The record indicates that Rob Powell is no longer a board member and I take judicial notice of public information from the official website of the South Country Central School District that Carol Herrmann, Antoinette Huffine, Rocco DeVito, Danielle Skelly, Julio Morales and Allison Stines also are no longer board members.  Thus, the application for their removal is moot, warranting denial (Application of Johnson, et al, 56 Ed Dept Rep, Decision No. 17,055; Appeal of Anderson, 52 id., Decision No. 16,438; Application of Lilly, 47 id. 307, Decision No. 15,705).

As to the remaining board members, Chris Picini and Lisa DiSanto, the application must be denied for failure to properly join them as necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

The affidavits of service filed by petitioner indicate that board members Picini and DiSanto were personally served with the petition, notice of petition, and the various exhibits.  However, mere service of the petition is not sufficient to join an individual.  The individual must also be named as a respondent in the caption of the petition to inform him or her that he or she must enter a defense or face the possibility of removal (Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756; Appeal of Race, 53 id., Decision No. 16,567; Appeal of Destino, 52 id., Decision No. 16,461; Appeal of Foshee, 38 id. 346, Decision No. 14,051).  Failure to name the individual sought to be removed is a fatal flaw, resulting in failure to properly join such individual as a necessary party, and warranting denial of the application for removal (Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756; Appeal of Race, 53 id., Decision No. 16,567; Appeal of Destino, 52 id., Decision No. 16,461; Appeal of Foshee, 38 id. 346, Decision No. 14,051).  In this case, no individual board members, including Picini and DiSanto, are named in the caption of the petition or notice of petition.  Petitioner’s failure to clearly name board members Picini and DiSanto in the caption of the petition and notice of petition failed to properly join them as respondents.  Thus, the application for their removal must be denied for failure to join them as necessary parties,   since they clearly would be adversely affected by their removal from office (see Appeal of T.G., 57 Ed Dept Rep, Decision No. 17,195; Application of Lyons-Birsner and Birsner, 57 id., Decision No. 17,160). 

Respondent also asserts that petitioner failed to provide the individual board members with the specific notice required for removal applications pursuant to 8 NYCRR §277.1.  The notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  The petition filed with my Office of Counsel includes the notice of petition required by §275.11(a) for appeals brought pursuant to Education Law §310.  Attached to the end of the petition are a series of what appear to be additional notices of petition, though not identified as such, that contain language required by §277.1 of the regulations.  Each is addressed to an individual board member, but none of the captions name any board member.  Respondent contends that the petition served upon the individual board members did not contain the notice required by §277.1 of the regulations.  I cannot ascertain on this record whether the individual board members were served with the proper notice of petition.  In any event, as noted above, the additional notices attached to the back of the petition filed with my Office of Counsel did not name any individual board member, including Picini and DiSantos, in the caption.  For these reasons, jurisdiction over them has not been properly effectuated and the application for their removal must be denied.

Respondent also contends that, to the extent that the petition complains of actions or omissions that occurred more than 30 days prior to the commencement of this appeal, it is untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of P.P., 57 Ed Dept Rep, Decision No. 17,321; Application of Kelty, 48 id. 476, Decision No. 15,921.  Therefore, to the extent that petitioner’s claims are based on actions or omissions that occurred prior to April 18, 2015, they are untimely.

Respondent argues that petitioner’s remaining claims must be dismissed as moot because the annual meeting at which petitioner sought to have her proposition submitted was held on May 19, 2015.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  However, as ultimate relief in this appeal, petitioner does not seek to have her proposition placed on the ballot at the annual meeting; rather, she seeks an order directing that a special district meeting be held for a vote on her universal busing proposition.  

Nevertheless, insofar as petitioner requests an order for a special district meeting to vote on the universal busing proposition that she submitted to respondent, the matter is moot.  To be valid, any such proposition requiring the expenditure of moneys must include the necessary appropriation (Education Law §2035[2]; Appeal of McNamee, 56 Ed Dept Rep, Decision No. 17,103; Appeal of Harwood, 36 id. 499, Decision No. 13,785; Appeal of Riordan, et al., 27 id. 182, Decision No. 11,913).  Petitioner’s universal busing proposition included an appropriation for the costs of such transportation in the 2015-2016 school year, but that school year has ended, and a special district meeting can no longer be called for a vote on petitioner’s proposition and appropriation for that year.  Because the relief sought cannot be granted, the appeal is also moot as to that demand.  

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

END OF FILE

 

[1] I note that the original verified petition filed with my Office of Counsel does not include a formal request for relief.  Petitioner subsequently submitted a second unverified and unsigned copy of the petition that includes several pages entitled “Prayer for Relief.” Respondent’s answer specifically responds to allegations in such “Prayer for Relief”, which indicates that the copy served upon respondent contained the “Prayer for Relief.”  Because respondent has not been prejudiced by this discrepancy between the petition served on respondent and the version initially filed with my Office of Counsel, I have accepted petitioner’s “Prayer for Relief” as part of the verified petition.