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Decision No. 14,845

Appeal of GLORIA T. COLEMAN, GERALD M. COLEMAN, ELIAS S. GOOTZEIT and GILBERTO S. RODRIGUEZ from action of the Board of Education of the City School District of the City of Mount Vernon, Superintendent of Schools Ronald O. Ross, Assistant Superintendent for Business Administration Dawn Arno, Board Secretary and District Clerk Yolanda Jernigan, Board President W. Darin Moore, Board Member Diane Munro, Longfellow Elementary School Principal Brezetta Griffiths-Bullock, Edward Williams Elementary School Principal Donna Marable, Coordinator for the Community School Program of the Edward Williams Elementary School Patrica Griffin, Nellie Thornton Elementary School Principal Sharon Burns, and Board Member Christopher Webb,  regarding a school board election.


(March 7, 2003)


Aiello & Cannick, Esqs., attorneys for respondents Board of Education, Ronald O. Ross, Dawn Arno, Yolanda Jernigan, W. Darin Moore, Brezetta Griffith-Bullock, Donna Marable, Patricia Griffin and Sharon Burns, Deveraux L. Cannick,  and Jennifer A. Fremgen, Esqs., of counsel


MILLS, Commissioner.--Petitioners appeal respondents' conduct of the May 2002 school board election held in the City School District of the City of Mount Vernon ("the district").  The appeal must be dismissed.

     Petitioners are district residents and were among eight candidates competing for four seats on the district's board of education in an election held on May 21, 2002.  During the election, petitioners campaigned jointly under the name "The Diversity Team."  Petitioners Gloria T. Coleman and Gerald M. Coleman were re-elected to the board of education.  Respondents Diane Munro and Christopher Webb were, respectively, re-elected and elected to the board.   Petitioners Elias S. Gootzeit and Gilberto S. Rodriguez and two other individuals, Albert D. Gordon and Curtis L. Brewington, were the unsuccessful candidates. 

Petitioners allege that they were "targeted" by respondents, who allegedly engaged in improper conduct that resulted in the disenfranchisement of voters and a fundamentally unfair election.  Petitioners allege that board candidates Munro, Webb, Gordon and Brewington were supported and funded together by United Black Clergy of Westchester, Inc. (UBC), and allege that certain  connections exist between several respondents and the UBC or the A.M.E. Zion Church, the pastor of which is alleged to be vice-president of the UBC.  Petitioners do not seek to overturn the election.  Rather, they request that I order a corrective action plan and assessment, make recommendations and reprimand respondents.

Respondents deny petitioners' allegations and contend that the appeal should be dismissed because: the Commissioner lacks authority to issue reprimands, advisory opinions or declaratory rulings; petitioners Gloria T. Coleman and Gerald M. Coleman lack standing; petitioners failed to join necessary parties; petitioners  failed to demonstrate by clear and convincing evidence that any voters were disenfranchised or that the alleged irregularities affected the outcome of the election; and the Commissioner lacks jurisdiction regarding alleged violations of Education Law "1528.

Initially, I must address petitioners" reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Hollister, 39 Ed Dept Rep 109, Decision No. 14,188). Therefore, while I have reviewed petitioners" reply, I have not considered those portions containing new allegations or exhibits which are not responsive to new material or affirmative defenses set forth in the answer.

Petitioners also request additional relief in their reply.  Specifically, petitioners request that they and/or the Commissioner obtain answers from respondents by a written interrogatory or participation in a hearing  regarding certain allegations which respondents denied or asserted a lack of sufficient knowledge or information to form a belief as to their truth or falsity.  However, an appeal to the Commissioner under Education Law "310 is appellate in nature and does not provide for discovery or evidentiary hearings (Lilley v. Mills, 274 AD2d 644; Akshar v. Mills, 249 AD2d 786, leave to appeal dismissed 92 NY2d 962; Forrest v. Ambach, 93 AD2d 965, appeal dismissed 60 NY2d 701; Appeal of Krantz, 38 Ed Dept Rep 485, Decision No. 14,077; Appeal of Schuler, 37 id. 512, Decision No. 13,915; Matter of Turchiarelli, 31 id. 402, Decision No. 12,681).  The regulations relating to appeals pursuant to Education Law "310 specify that "all evidentiary material shall be presented by affidavit or by exhibits.  No testimony is taken . . ." (8 NYCRR "276.2[d]).

Petitioners further request in their reply that I issue a decision acknowledging the alleged deviations from good electoral practice.  In essence, this request seeks an advisory opinion which is not available under Education Law "310 (Appeal of Razzano, 39 Ed Dept Rep 303, Decision No. 14,244; Appeal of Federico, 38 id. 351, Decision No. 14,052; Appeal of Lambert, 37 id. 599, Decision No. 13,937).

Respondents contend that petitioners Gloria Coleman and Gerald Coleman lack standing to bring this appeal since they were among the four winning candidates and are therefore not aggrieved within the meaning of Education Law "310.  However, a petitioner's status as a district resident is sufficient to maintain an appeal with respect to the manner in which respondents conducted an election (Appeals of Schadtle and Wilcox, 38 Ed Dept Rep 599, Decision No. 14,102; Appeal of Gravink, 37 id. 393, Decision No. 13,888).

Respondents contend that the appeal must be dismissed because petitioners and successful candidates, Gloria Coleman and Gerald Coleman, were not joined as necessary parties.  Since petitioners do not challenge the election results, board members Gloria Coleman and Gerald Coleman are not at risk of being deprived of their seats on the board of education, and are therefore not necessary parties (SeeAppeal of Goldin, 40 Ed Dept Rep 628, Decision No. 14,572).  Furthermore, in as much as these two individuals, as petitioners, are already parties to this appeal and consequently subject to my jurisdiction, their joinder as respondents is unnecessary.

The appeal must be dismissed to the extent petitioners request that I reprimand respondents.  There is no provision  in the Education Law to authorize the censure or reprimand of a board member or district staff by the Commissioner of Education (SeeAppeal of Kozak, 39 Ed Dept Rep 278, Decision No. 14,237; Appeal of Kane, 34 id. 116, Decision No. 13,251; Appeal of Silano, 33 id. 20, Decision No. 12,961). 

Petitioners" remaining claims for relief - that I review and correct the district's procedures for conducting elections, that I recommend assignment of police officers at each polling place, and that I assess whether the district should contract with an outside provider to conduct the electoral process - essentially request an advisory opinion. The Commissioner of Education does not issue advisory opinions in appeals brought pursuant to Education Law "310 (Appeal of Razzano, supra; Appeal of Federico, supra; Appeal of Lambert, supra).  Moreover, almost all of petitioners' allegations concern conduct that is not specifically prohibited by law perse, but would be improper only to the extent such conduct unfairly impaired and affected the results of the election.  However, since petitioners do not challenge the results of the election, it would be a mere academic exercise for me to determine whether such conduct was improper.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Petitioners allege that district staff and resources were used for partisan political purposes and that partisan advocacy was allowed to occur on district premises.  The parties present conflicting statements and, on the record before me, I find that petitioners' statements and affidavits are effectively countered by respondents' statements and affidavits, and the proof is therefore placed in equipose. Since  petitioners have the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Eckert, 40 Ed Dept Rep 433, Decision No. 14,520; Appeal of James L., 39 id. 482, Decision No. 14,288; Appeal of Logan, 38 id. 694, Decision No. 14,120), I find that petitioners have failed to carry their burden of proof and their allegations must be dismissed. 

Furthermore, while I note that in one instance  literature promoting certain school board candidates was included in informational folders distributed as part of a community forum on job seeking and resume writing held at the Longfellow Elementary School on April 25, 2002, it appears from the record that this was an isolated incident, that the school principal did not knowingly consent to and permit the inclusion of such materials, and that the principal took appropriate action once she became aware of their inclusion.  Accordingly, this occurrence is not a basis for relief. 

To the extent petitioners allege that the district does not enforce the requirements of Education Law "1528 regarding the submission of candidate expenditure reports , petitioners fail to specify and establish the failure by the district to carry out any affirmative duty placed upon the district pursuant to "1528.  I note that the statute places responsibility on the candidates themselves for the filing with the school district clerk of statements of election expenditures.  There is nothing in the record to establish that the district has failed or refused to accept such statements for filing.  In any event, enforcement of the filing requirements is by means of a proceeding instituted in the Supreme Court of the State of New York, and is therefore outside the jurisdiction of the Commissioner of Education (Education Law "1530; Appeal of Donnelly, 33 Ed Dept Rep 362, Decision No. 13,079).

With respect to petitioners' request that I conduct an investigation of the matters set forth in their petition, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Application of Wilson, 41 Ed Dept Rep __, Decision No. 14,663; Appeal of Van Zile and Crowell, 37 id. 213, Decision No. 13,846; Appeal of Distefano, 36 id. 217, Decision No. 13,705).  Moreover, petitioners have the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Eckert, supra; Appeal of James L., supra; Appeal of Logan, supra).  Petitioners have failed to meet this burden.

I have examined petitioners' remaining allegations and find them to be without merit.