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Decision No. 14,260

Appeal of ALAN MORGENSTERN from action of the Board of Education and administration of the North Shore Central School District regarding a school board election.

Decision No. 14,260

(December 15, 1999)

Rains & Pogrebin, P.C., attorneys for respondent, David Wirtz, Sharon Berlin & Howard Miller, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges the actions of the Board of Education of the North Shore Central School District ("respondent") and its administration in refusing to extend the deadline for nominating petitions for election to the board of education. The appeal must be dismissed.

On April 19, 1999 petitioner presented a nominating petition for his name to appear on the ballot for the district's May 18, 1999 school board election. On April 20, 1999, respondent's district clerk notified petitioner that his petition would not be accepted because he had submitted it after 5:00 p.m. on April 19, 1999, the last day for submitting petitions. Petitioner subsequently waged an unsuccessful write-in campaign for a seat on the board of education.

Petitioner contends that another candidate withdrew from the election on April 20, 1999 and that Education Law "2018 dictates that the filing deadline should have been extended. He claims respondent's failure to extend the deadline denied him the opportunity to submit a nominating petition. He requests that I invalidate the election results and order a new election.

Respondent contends that a candidate withdrew on April 21, 1999 and that petitioner did not submit his petition for consideration during the 15-day extension period following the candidate's withdrawal. Respondent argues that the petition should be dismissed because petitioner has not been aggrieved, is barred by laches, fails to join necessary parties and fails to state a cause of action.

The appeal must be dismissed for failure to join the winning candidates as respondents. 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 respondents the two winning candidates whose seats would be vacated if the election were nullified, nor has he served a copy of the petition upon them. Where joinder is required but not effected, the appeal must be dismissed (Appeal of Levine, 38 Ed Dept Rep 768, Decision No. 14,138; Appeal of Heller, 38 id. 335, Decision No. 14,048; Appeal of Hochhauser, et al., 34 id. 580, Decision No. 13,415).

In light of this disposition, I need not address the parties' remaining contentions.