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Decision No. 13,323

Appeal of WESLEY EVANS MARTIN from action of the Board of Education of the Central Islip Union Free School District, Norman A. Wagner, Sandra Townsend, Helen D. Brannon, Frederick Philips, John P. Proscia and Thomas E. Doyle, board members, relating to the rejection of a nominating petition.

Decision No. 13,323

(December 28, 1994)

Kevin A. Seaman, Esq., attorney for respondents

SOBOL, Commissioner.--Petitioner challenges the rejection of his nominating petition as a candidate for the Board of Education of the Central Islip Union Free School District ("respondent board"). Petitioner also claims that respondent board failed to post the proposed budget and that respondent board violated his civil rights. The appeal must be dismissed.

Petitioner contends that he is a resident and taxpayer of the Central Islip Union Free School District and, as such, submitted a nominating petition for an at-large position on the board. The board rejected petitioner's nominating petition at a special meeting on April 25, 1994, because petitioner was not a resident of the district for one year prior to the May 25, 1994 election, as required by Education Law '2102. Respondent board accepted five other nominating petitions and one was withdrawn. Petitioner maintains that the rejection of his nominating petition based on non-residency was arbitrary, capricious and punitive and part of a conspiracy by the members of the board to exclude him from membership.

On May 20, 1994, petitioner filed this appeal seeking a stay order suspending the May 25, 1994 election, directing respondent board to include petitioner on the ballot and barring any of the five other nominees from assuming office unless petitioner was included on the ballot. Petitioner also sought costs of filing his appeal. Respondents deny petitioner's allegations and contend that petitioner lacks standing to bring this appeal because he is not a resident of the district. Respondents also assert that its rejection of petitioner's nominating petition was proper based upon his lack of residency. I denied interim relief on May 24, 1994.

Before reaching the merits, I must first address a procedural issue. Petitioner raised issues in his reply which were not included in the petition and not in response to respondents' answer. Under 8 NYCRR 275.3 and 275.14, a reply is to respond to procedural defenses or new material contained in an answer (Appeal of Post, 33 Ed Dept Rep 151; Appeal of Eastman Kodak Company, 32 id. 575). It is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition (Appeal of Eastman Kodak Company, supra; Appeal of Taber, et al., 32 id. 346). Accordingly, I have not considered the portions of the reply that contain new allegations or exhibits.

This is the seventh appeal petitioner has brought before me since 1989 and the fourth concerning the rejection of his nominating petitions by respondent board (Appeal of Martin, 29 id. 148; Application of Martin, 31 id. 441; Appeal of Martin, 32 id. 208; Appeal of Martin, 32 id. 381; Appeal of Martin, 32 id. 567; and Appeal of Martin, 33 id. 225). (In an additional case, Appeal of Vento, 26 id. 507, petitioner was the respondent.) In the four most recent appeals, I specifically addressed the issue of petitioner's residency status and determined that petitioner does not reside in Central Islip but rather resides in East Islip. As I stated in Appeal of Martin, 32 id. 208:

The question of residence is one of fact, and despite petitioner's assertions that he is a resident of respondent's district, the record before me provides a basis to conclude that petitioner no longer resides in Central Islip Union Free School District .... While it appears that petitioner maintains certain documents of identification listing the Central Islip address for purposes of asserting that location as his legal residence, his actions indicate otherwise. Petitioner offers inadequate proof to rebut the evidence presented by respondent's investigative report.

Accordingly, I determined that respondent board properly rejected petitioner's nominating petition and that petitioner lacked standing to bring an appeal to the Commissioner.

In the most recent appeal, I found that petitioner still failed to present any significant new evidence to support his claim that he is a resident of the district (Appeal of Martin, 33 id. 225). Petitioner challenged that decision in the Supreme Court, Albany County, under Article 78 of the Civil Practice Law and Rules. The Supreme Court specifically affirmed the determination in that case:

The Court finds that the SED's [State Education Department's] decision was not arbitrary and capricious. The Commissioner of the SED relied upon its past decision which, in turn, relied upon an investigation made of the petitioner. The investigator's report was sufficient to allow the Commissioner to conclude that the petitioner resides in East Islip. The petitioner has not shown that he presented significant new evidence to the Commissioner. Thus, the petitioner may not run for the Central Islip School Board (Education Law '2102) and lacks standing to bring his application before the SED (Matter of Jersey and Carrol, 19 Ed Dept Rep 162 [1979] {sic}). Martin v. Sobol. et al., Supreme Court, Albany County, Special Term; Williams, J.; April 7, 1994, n.o.r.

Despite the decision of the Supreme Court, petitioner continues to dispute his residency status and insist that he resides in Central Islip. He has appealed the Supreme Court decision to the Appellate Division, Third Department, where a decision is pending. Nonetheless, petitioner has presented no significant new evidence to support his claim that he is a resident of the Central Islip School District. Petitioner merely attempts in the current petition to discredit, rehash and reargue the bases for my earlier decisions on this issue. Because I find that petitioner is a nonresident, I continue to find that he lacks standing to bring this seventh appeal and that respondents acted properly in rejecting his nominating petition.

I have reviewed petitioner's remaining contentions and find them without merit.



IN WITNESS WHEREOF, I, Thomas Sobol, Commissioner of Education of the State of New York, for and on behalf of the State Education Department, do hereunto set my hand and affix the seal of the State Education Department, at the City of Albany, this day of December, 1994.



Commissioner of Education