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Decision No. 14,138

Appeal of LINDA LEVINE from action of the Board of Education of the Half Hollow Hills Central School District concerning the conduct of a school board election.

Decision No. 14,138

(June 1, 1999)

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Laura A. Ferrugiari and Jacob S. Feldman, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges the results of a school district election held by the Board of Education of the Half Hollow Hills Central School District ("respondent") on May 19, 1998. The appeal must be dismissed.

Petitioner is a resident of respondent's district, and worked at the polls on the day of the election that she challenges. She raises a number of questions with respect to absentee ballots, and claims that these irregularities affected the outcome of the election. It appears that the candidate who received the third largest number of votes on the voting machines, after addition of the absentee ballots, became the second leading vote getter, and thereby secured a seat on the board of education. Petitioner seeks to have all absentee ballots nullified.

Respondent generally denies that the election was improperly conducted and raises a number of affirmative defenses, including improper joinder of parties, lack of standing on the part of petitioner, who was not a candidate, to represent the interests of other persons, and improper service of the petition upon respondent.

Respondent's objection that petitioner has failed to name, and serve the petition upon, the winning candidate whose rights are in jeopardy in this appeal, is dispositive. Commissioner's Regulation "275.8(d) provides that where an appeal involves the validity of a school district meeting or election, a copy of the petition must be served not only on the board but also upon "each person whose right to hold office is disputed and such person must be joined as a respondent." Here, petitioner has neither named as a respondent the winning candidate whose seat on the board would be lost if the absentee ballots were nullified, nor served a copy of the petition upon her. Where joinder is required but not effected, the appeal must be dismissed (Appeal of Heller, 38 Ed Dept Rep 335; Appeal of Hochhauser, et al., 34 id. 580; Appeal of Reese, et al., 34 id. 187; Application to Reopen Appeal of Reese, et al., 34 id. 447).

In light of this disposition, it is unnecessary to discuss the other contentions and arguments of the parties.