Decision No. 18,048
Appeal of PAUL PUSKULDJIAN and JERRY ROMANO from action of the Board of Education of the North Shore Central School District; Sara Jones, as president of the board; Peter Giarrizzo, as district superintendent; Elizabeth Ciampi, as district clerk; Greg Perles, as president of North Shore Federated Employees; and Andrea Macari regarding a school district election and budget vote.
Decision No. 18,048
(September 20, 2021)
Frazer & Feldman LLP, attorneys for school district respondents, Laura A. Ferrugiari, Esq., of counsel
Robert T. Reilly, General Counsel for the New York State United Teachers, attorneys for respondent Perles, Gregory M. Ainsley, Esq., of counsel
ROSA., Commissioner.--Petitioners appeal purported actions of the Board of Education of the North Shore Central School District (“board”); board president Sara Jones (“board president”); district superintendent Peter Giarrizzo (“superintendent”); and district clerk Elizabeth Ciampi (“district clerk”) (collectively, “district respondents”), as well as the president of North Shore Federated Employees (NSFE), Greg Perles (“Perles”), regarding the district’s June 2020 school board election and budget vote. Petitioner also joins Andrea Macari (“Macari”), a board trustee and candidate in the June 2020 election. The appeal must be dismissed.
On June 9, 2020, the board held its annual budget vote and election, in which district residents voted to fill two at-large board seats. Macari and Richard Galati – who is not a party to this appeal – were the winning candidates for these seats. This appeal ensued
Petitioners allege that the district respondents violated Education Law and “systematically interfered with” the June 2020 election by “providing absentee voter poll data before the polls closed” to the board president, Macari, and Perles in response to their Freedom of Information Law (“FOIL”) requests. Petitioners further allege that district resources “were used to advocate a ‘yes’ vote on the [s]chool [b]udget,” that NSFE obtained voter contact information and used it “to send an advocacy postcard to arrive simultaneously with [e]lection [b]allots,” and that the superintendent “targeted email communications about the [b]udget and [t]rustee [v]ote to parents of children in the school district and not to the whole electorate.” Petitioners seek an order overturning the results of the June 9, 2020 election and vote.
The district respondents argue that the appeal must be dismissed as untimely, for improper service, and for failure to join all necessary parties. On the merits, the district respondents generally deny petitioners’ allegations and argue that petitioners have failed to establish any legal basis for the relief requested.
Perles answers separately and argues, among other things, that he is not a proper party to this appeal and that the appeal must be dismissed as against him for lack of jurisdiction.
First, I must address the procedural issues. The appeal must be dismissed as against Perles for lack of jurisdiction. Petitioners challenge Perles’s alleged actions as president of NSFE. It is well settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education under Education Law § 310 (Appeal of Leake, 57 Ed Dept Rep, Decision No. 17,235; Appeal of Parker, 56 id., Decision No. 17,054; Appeal of Hoefer, 41 id. 203, Decision No. 14,664). Therefore, I lack jurisdiction over petitioners' claims against Perles, and the appeal must be dismissed with respect to him.
Likewise, to the extent petitioners assert claims concerning FOIL, these claims must also be dismissed for lack of jurisdiction. Section 89 of the Public Officers Law vests exclusive jurisdiction over alleged FOIL violations in the Supreme Court of the State of New York (Appeal of H.A., 57 Ed Dept Rep, Decision No. 17,215; Appeal of Olka, 48 id. 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747). Therefore, such allegations may not be adjudicated in an appeal pursuant to Education Law § 310, and I have no jurisdiction to address the FOIL allegations raised in this appeal.
Petitioners’ remaining claims must be dismissed for failure to join a necessary party. A person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934). Joinder requires that a party be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition, informing the party to appear in the appeal and to answer the allegations contained in the petition (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517). In an appeal regarding a school district election, the petitioner must join the district’s board of education as well as “each person whose right to hold office is disputed” (8 NYCRR 275.8 [d]; see Appeal of Bonelli, 59 Ed Dept Rep, Decision No. 17,795; Appeal of Duffy, 47 id. 86, Decision No. 15,634).
Petitioners seek to have the results of the June 9, 2020 election overturned, which could adversely affect the candidates who were elected to the board in this election – respondent Macari and nonparty Richard Galati. Moreover, as indicated above, section 275.8 (d) of the Commissioner’s regulations specifically requires joinder of “each person whose right to hold office is disputed” in an election appeal. Therefore, Mr. Galati is a necessary party, and petitioners' failure to join him as such requires dismissal of this appeal (Appeal of Bonelli, 56 Ed Dept Rep, Decision 17,795; Appeal of McDonough, 54 id., Decision No. 16,752; Appeal of Pasquini, 53 id., Decision No. 16,500).
Finally, I note that, even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. To invalidate the results of a school district election, the petitioner must either: (1) establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or (2) demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (see Matter of Boyes v Allen, 32 AD2d 990, 991 [3d Dept 1969], affd on op below 26 NY2d 709 ; Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of the Bd. of Educ. of the Minerva Cent. Sch. Dist., 54 id., Decision No. 16,628; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905; Appeal of Levine, 24 id. 172, Decision No. 11,356, art 78 dismissed Matter of Capobianco v Ambach, 112 AD2d 640 [3d Dept 1985]). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of an election are so pervasive as to vitiate the fundamental fairness of the election (see Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884). It is well settled that mere speculation as to the existence of irregularities or the effect of irregularities provides an insufficient basis on which to annul election results (Appeal of Holliday, 60 Ed Dept Rep, Decision No. 17,947; Appeal of Dodson, et al., 54 id., Decision No. 16,764).
On this record, petitioners have failed to carry their burden of proving that any irregularities occurred and affected the outcome of the election. Although petitioners object to various alleged actions of the district respondents, petitioners have not provided any evidence, such as an affidavit from a district voter, to establish that such actions impacted the results of the election in any way. Accordingly, even if the appeal were not dismissed on procedural grounds as discussed above, it would be dismissed on the merits.
In light of this determination, I need not address the parties’ remaining claims.
THE APPEAL IS DISMISSED.
END OF FILE
 Typically, such election would have occurred on the third Tuesday in May, pursuant to Education Law § 2022. On May 1, 2020, however, in response to the ongoing state of emergency caused by the novel coronavirus pandemic, the Governor suspended these provisions, among others, and thereby “adjourned and rescheduled” school district elections and budget votes “until June 9, 2020,” which was “deemed the statewide uniform voting day” (Executive Order 202.26; see Executive Orders 202, 202.23).