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Decision No. 17,529

Appeal of CARRIE E. ROBINSON[1] from action of the Board of Education of the Enlarged City School District of the City of Newburgh regarding a school district election and budget vote.

Decision No. 17,529

(October 31, 2018)

Shaw, Perelson, May & Lambert LLP, attorneys for respondent, Margo L. May, Esq., of counsel

ELIA, Commissioner.--Petitioner, an unsuccessful candidate in May 2018 for a seat on the Board of Education of the Enlarged City School District of the City of Newburgh (“respondent” or “board”), brings this action seeking a new election.  The appeal must be dismissed.

Respondent conducted its annual meeting on May 15, 2018, which included a school budget vote, a library budget vote, three propositions and the election of four school board members, one of which was to fill an unexpired term through June 30, 2019.  Of the six candidates for the four school board seats, petitioner received the fifth highest number of votes and was thus unsuccessful in her bid for a board seat.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 12, 2018.

Petitioner claims that because of inclement weather that caused “power outages, service interruptions, blocked roads, two deaths and a variety of other circumstances, including a State of Emergency declaration,” voters were “directed NOT to leave their homes and were not able to vote the last five hours of the day.”  Petitioner contends that she was adversely affected because “a new vote date should have been held to allow ALL constituents the opportunity to vote in their local election.”   Petitioner also requests that “a specific policy and procedure to be implemented in the event if [sic] an unforeseen act of God should take place on an election day.”  

Respondent argues that, although there was inclement weather on May 15, 2018, petitioner has not met her burden of proving that any irregularities occurred which would require the invalidation of the election results.   Respondent also alleges that the appeal is untimely and that petitioner has failed to join necessary parties; specifically, the four individuals who were elected to the board on May 15, 2018.  Finally, respondent argues that petitioner’s attempt to bring this action on behalf of the “disenfranchised” fails because she has not set forth the number of individuals whom she seeks to represent or alleged common issues of law or fact among this group.

The appeal must be dismissed, in part, as 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 Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  However, with respect to appeals involving school district elections, I have held that it would be unreasonable and detrimental to the efficient resolution of a petitioner’s claims to require that petitioner institute separate appeals with respect to acts comprising a series of events closely related to the election (Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Antaki and Mosman, 47 id. 228, Decision No. 15,678; judgment granted dismissing petition, Antaki and Mosman v. Mills and Bd. of Educ., Pleasantville UFSD, Sup. Ct., Albany Co., [Platkin, J.], May 30, 2008, n.o.r.; Appeal of Maliha, 41 id. 367, Decision No. 14,716).  In such circumstances, even though the appeal involves acts occurring more than 30 days from the date the appeal is commenced, I have declined to dismiss the appeal as untimely provided the appeal is commenced within 30 days of the election (see Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296 Appeal of Antaki and Mosman, 47 id. 228, Decision No. 15,678; judgment granted dismissing petition, Antaki and Mosman v. Mills and Bd. of Educ., Pleasantville UFSD, Sup. Ct., Albany Co., [Platkin, J.], May 30, 2008, n.o.r.).  The record indicates that petitioner served the petition on July 2, 2018.  This date is more than 30 days after the election as well as 30 days after respondent declared the results of the election at its May 22, 2018 meeting (see e.g. Appeal of Gilmore and Jordan-Thompson, 42 Ed Dept Rep 334, Decision No. 14,874; Appeal of Bosco, et al., 32 id. 554, Decision No. 12,912).  Petitioner offers no excuse for the delay.  Thus, the appeal must be dismissed as untimely.

The appeal must also be dismissed for failure to join 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 (Application of Gates 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).  Section 275.8(d) of the Commissioner’s regulations provides in pertinent part: “If an appeal involves the validity of a school district meeting or election ... a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent” (emphasis added) (see Appeal of Schultz, 48 Ed Dept Rep 70, Decision No. 15,796; Appeal of Duffy, 47 id. 86, Decision No. 15,634).

Petitioner asks that a “new election be held” and therefore, that the results of the May 15, 2018 election be invalidated. A decision in petitioner’s favor would affect the four successful candidates for school board who would no longer be secure in their positions.  However, none of the successful school board candidates were served with a copy of the petition or named in the caption of the petition.  The appeal must, therefore, be dismissed for failure to join necessary parties.

To the extent petitioner seeks to maintain the appeal as a representative of a class of the “disenfranchised,” class status is denied.  Although petitioner does not specifically state that she seeks class status, she states that she brings the action on behalf of the “disenfranchised” – i.e., individuals who were not able to vote on May 15, 2018 because of the inclement weather and/or because a State of Emergency was declared, directing people not to leave their homes.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  

Petitioner has not made this showing or addressed any issues concerning the members of the class.  It is not clear from the record who, or how numerous the members of, the “disenfranchised” are.  Therefore, class status is denied.

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

THE APPEAL IS DISMISSED.

END OF FILE

 

 

[1] As discussed below, in the caption of her petition and notice of petition, petitioner purports to bring this appeal on behalf of “the disenfranchised.”