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Decision No. 13,767

Appeal of the COALITION FOR THE EMPOWERMENT OF PEOPLE OF AFRICAN ANCESTRY from action of the Board of Education of the City School District of the City of Mount Vernon, Marie Grace Anker, Benjamin Consolazio, Leonard Sarver and Anthony Mosca regarding an annual election.

Decision No. 13,767

(May 14, 1997)

Sullivan & Cromwell, Esqs., attorneys for petitioner, Andrew Rotstein and Richard Klapper,

Esqs., of counsel

D'Andrea and Goldstein, Esqs., attorneys for respondents, Robert Goldstein, Esq., of


MILLS, Commissioner.--Petitioner, the Coalition for the Empowerment of People of African Ancestry ("CEPAA"), appeals certain actions of the Board of Education of the City School District of the City of Mount Vernon ("respondent board") and its district clerk, Elia C. DeBenedictis, in relation to the May 7, 1996 annual election of school board members. The appeal must be dismissed.

Petitioner initiated this appeal prior to the May 7, 1996 election of school board members in respondent's district. In its verified petition, petitioner contends that respondent board, school district clerk Elia C. DeBenedictis and the individual respondent candidates for election would harass and intimidate rival candidate poll watchers and would "have the opportunity to direct or change the results of the election." Petitioner bases its contention on allegations that the clerk is a member of the local Italian Civic Association (ICA), that the ICA "selects candidates to run for membership on the board of education" and that, because of that affiliation, the election will not be conducted properly.

Petitioner sought both an interim and final order directing respondent to allow representatives of CEPAA and each candidate to be present at each polling place and at the canvassing or recounting of ballots, and further directing respondent to permit such representatives to examine any ballot upon request. Petitioner also sought an order directing respondent to impound the voting machines and paper ballots used in the elections. Petitioner's request for an interim order prior to the election was denied.

In its answer, submitted subsequent to the May 7 election, respondent denies that any improprieties occurred at the election. Respondent submits an affidavit by its district clerk in support of its position and further indicating that all ballots are securely preserved by the district after all elections and that the City of Mount Vernon stores all voting machines.

As a threshold matter, although not raised by respondent, this appeal must be dismissed for lack of standing to bring an appeal before the Commissioner of Education. This appeal was brought by the Coalition for the Empowerment of People of African Ancestry. The petition is verified by the chairperson of that group's political action committee. However, there is no indication that this organization is incorporated, nor is there any evidence that the person verifying the petition is in any manner personally affected by respondents' actions. An unincorporated group, such as this group, lacks standing to maintain an appeal to the Commissioner (Appeal of Concerned Parents and Taxpayers of Abraham Wing Common School District, 36 Ed Dept Rep 165; Appeal of Concerned Taxpayers Awareness Group, 35 id. 448). In addition, an individual representative of an unincorporated association does not have standing to maintain an appeal pursuant to Education Law '310 (Appeal of Concerned Parents and Taxpayers of Abraham Wing Common School District, supra). Therefore the appeal is dismissed for lack of standing.

The appeal is also dismissed as moot. The ultimate relief sought by petitioner is identical to that contained in petitioner's request for an interim order. As noted, prior to the election petitioner requested an interim order directing respondent to permit its representatives to be present at various stages of the election process and to examine ballots upon request and also directing respondent to preserve the ballots and machines used in the election. I refused to issue such an interim order and the election was conducted on May 7, 1996. Moreover, the relief sought by petitioner regarding preservation of the ballots has already been obtained insofar as the record indicates that the district securely preserves all election ballots. The record also indicates that the voting machines are the property of the City of Mount Vernon and respondent was required to return them to the City to be stored subsequent to the election. It is well settled that the Commissioner will decide only matters in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of McCart, et al., 36 Ed Dept Rep 363; Appeal of Edward G., 36 id. 9; Appeal of Goldin, 35 id. 446). Because the vote has already occurred, respondent is already preserving the paper ballots and was required to return the voting machines to the City of Mount Vernon, no further relief can be granted. Thus, the appeal is moot.

I note that in its reply petitioner attempts to expand the scope of the appeal by including new claims regarding allegations of impropriety that occurred during the vote. The purpose of a reply is to respond to new materials or affirmative defenses set forth in the answer (8 NYCRR '275.14), not to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Appeal of Perry, 36 Ed Dept Rep 141; Appeal of Crawmer, 35 id. 206; Appeal of Aarseth, 33 id. 522). Petitioner may not augment the scope of the petition through its reply. Petitioner also requests permission to submit a supplemental affidavit pursuant to 8 NYCRR '276.5 which contains new allegations of misconduct by respondent at the May 7, 1996 election. While 8 NYCRR '276.5 permits the submission of additional evidence not available at the time the appeal was brought, it cannot be used to add new claims against a respondent for which notice has not been provided. Consequently, I will not consider the new claims raised in petitioner's reply and supplemental affidavit.

The appeal must also be dismissed on the merits. The petition contains no factual allegations of actual wrongdoing by respondents, but merely speculates as to respondents' conduct at an upcoming election. In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR '275.10; Appeal of Norkin, 33 Ed Dept Rep 643). Mere speculation is insufficient to establish a clear legal right to relief. Upon review of the limited scope of the petition, its speculative nature, and the procedural deficiencies noted above, I find no basis on which to sustain the appeal.