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Decision No. 13,597

Appeal of CONCERNED TAXPAYERS AWARENESS GROUP from action of the Board of Education of the Middleburgh Central School District regarding the filling of a board vacancy.

Decision No. 13,597

(April 23, 1996)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Craig M. Atlas, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the appointment by the Board of Education of the Middleburgh Central School District ("respondent") of Stephen Coonradt to a vacant board seat. The appeal must be dismissed.

In June 1995, Stephen Coonradt, a board member, lost his bid for reelection to a seat on respondent board. In July 1995, a vacancy was created on the board by a resignation, and in November 1995, the board appointed Coonradt to fill that vacancy. Petitioner contends that the decision of the board was inappropriate. It argues that the election results demonstrate that district residents did not want Coonradt to serve on the board. Petitioner therefore requests that Coonradt be removed and a special election held.

Respondent contends that Coonradt was an appropriate choice because of his board experience, and notes that Coonradt received the second highest number of votes in the election. In addition, respondent raises several defenses, including lack of standing and failure to join a necessary party. Respondent also contends that its actions complied with Education Law and that the board lacks authority to rescind the appointment.

As a threshold matter, this appeal must be dismissed for lack of standing to bring an appeal before the Commissioner of Education. This appeal was brought by the Concerned Taxpayers Awareness Group, and the petition was verified by an individual who identified herself as a representative of that group. There is no indication that this committee is incorporated, nor is there any evidence that the person verifying the petition is in any manner personally affected by respondent's action. An unincorporated association, such as this group, lacks standing to maintain an appeal to the Commissioner (Appeal of The Plaza School Playground Committee, 35 Ed Dept Rep 83; Appeal of PS 7/IS 171 Environmental Improvement Committee, 34 id. 297). In addition, an individual representative of an unincorporated association does not have standing to maintain an appeal pursuant to Education Law '310 (Appeal of The Plaza School Playground Committee, supra; Appeal of Mezzapelle, 33 Ed Dept Rep 490). Therefore, the appeal must be dismissed for lack of standing.

The petition must also be dismissed for failure to join a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Greening, 35 Ed Dept Rep 122; Appeal of Frasier, 34 id. 315). Petitioner seeks removal of board member Coonradt, who would clearly be adversely affected if the relief petitioner requests were granted. Joinder requires that the necessary party be named as a respondent, served with the petition, and afforded a genuine opportunity to respond to the allegations (Appeal of Osterman, 30 Ed Dept Rep 290). Coonradt was neither named nor served. Therefore, he had no notice that he was required to appear in the appeal or answer the allegations contained in the petition. Consequently, petitioner's failure to join Coonradt requires dismissal.

The appeal must also be dismissed on the merits. Petitioner contends that respondent should have held a special election rather than appoint a defeated incumbent candidate to fill the vacancy. However, Education Law '1709(17) (applicable to central school districts by virtue of '1804(1)) authorizes a school board "to fill any vacancy which may occur in said board." Indeed, although alternative methods are provided for in '2113, '1709 sets forth both the power and the duty of the board to fill vacancies on the board by appointment by the remaining members thereof (Matter of Stephan, 76 St Dept Rep 114). Furthermore, it is not illegal to appoint a defeated candidate for another vacancy on the same board (Matter of Arctander, 2 Ed Dept Rep 313).

In an appeal before the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of Keyrouze, 34 Ed Dept Rep 468; Appeal of Sivak, 34 id. 313). Petitioner has not met this burden. The appeal must be dismissed.