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Decision No. 14,999

Appeal of MIKE MILAZZO on behalf of the BRENTWOOD SUMMIT COUNCIL, DR. LEVI MCINTYRE, HELEN R. MOSS, JACKIE MERRIWEATHER, VERONICA YANNETTI, JOHNNY VELEZ, WILLIAM MOSS, II and JESSIE LADSON from action of the Board of Education of the Brentwood Union Free School District regarding a school board election.


Decision No. 14,999

 (December 12, 2003)


Bernard T. Callan, P.C., attorney for respondent


MILLS, Commissioner.--Petitioners challenge the June 3, 2003 school board election conducted by the Board of Education of the Brentwood Union Free School District ("respondent").  The appeal must be dismissed.

Petitioners reside within respondent"s school district.  Petitioners McIntyre, Moss, Merriweather, Yannetti, Velez and Ladson were unsuccessful candidates in the June 3, 2003 election of board members.  Petitioners Mike Milazzo and William Moss II voted in that election.  Petitioner Milazzo also is president of the Brentwood Summit Council and purports to represent that association in this appeal.

Petitioners set forth a number of alleged irregularities they claim occurred in connection with the June 3 budget vote and school board election.  They seek an order nullifying the election results, but do not ask to set aside the budget vote.  Specifically, petitioners claim that the number of voters who signed the poll list and voted is greater than the number of voters who cast votes to fill each vacant seat on the board.  Similarly, they claim that the total number of votes for and against the budget is less than the number of votes tallied for each vacancy.  Petitioners allege that these numerical discrepancies "seem serious and questionable."

Petitioners also challenge the validity of certain voters who signed the poll list and voted, whose names were listed only on the county board of elections list and not on the school district"s voter registration list.  Petitioners claim that 75 individuals who signed the poll list and voted were not listed on either the school district or board of elections registration list.  Petitioners further question certain corrections on the tally sheets on which the votes were tabulated.

In addition, petitioners claim that at least one district employee impermissibly used district resources to post campaign signs throughout the community in support of certain board candidates.  Finally, petitioners contend that respondent has not complied with the requirements of the Freedom of Information Law ("FOIL") and has, therefore, hampered their ability to resolve questions they have regarding the integrity of the election.

Respondent maintains that the appeal is untimely, that petitioner Milazzo does not have standing as representative of the Brentwood Summit Council, and that petitioners have failed to join the successful candidates in the election as necessary parties, thus warranting dismissal of the appeal.  Respondent also denies that any irregularities occurred in connection with the June 3, 2003 election and asserts that the conduct of the election was in all respects proper.

As an additional procedural matter, I must first 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 Goldin, 43 Ed Dept Rep __, Decision No. 14,904; Appeal of Parisi, 42 id. ___, Decision No. 14,893).  Much of petitioners" reply consists of new allegations or materials that should have been included in their petition.  While I have reviewed petitioners" submissions, I have not considered those portions of the reply containing new allegations or exhibits which are not responsive to new material or affirmative defenses set forth in the answer.

I now turn to respondent"s procedural defenses.  The petition must be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of petitioners is a necessary party and must be joined as such (Appeal of Stolbach, 43 Ed Dept Rep ___, Decision No. 14,977; Appeal of Gilmore and Jordon-Thompson, 42 id. ___, Decision No. 14,874; Appeal of Reynolds, 42 id. ___, Decision No. 14,853).  Clearly the rights of the successful candidates would be affected if the school board election is declared void.  Section 275.8[d] of the Commissioner"s regulations provides in pertinent part: "If an appeal involves the validity of a school district meeting or election, "a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent" (emphasis added).  Joinder requires that an individual be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Stolbach, supra; Appeal of Gilmore and Jordan-Thompson, supra; Appeal of Reynolds, supra).  In this case, petitioners have not named or personally served the individual members of respondent board who were successful candidates in this election and, therefore, the appeal must be dismissed.

I must also dismiss petitioners" allegations that respondent violated FOIL (Public Officers Law, Article 6).  Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeals of Tesser and Kavitsky, 42 Ed Dept Rep ___, Decision No. 14,876; Appeal of Rowe, 41 id. 189, Decision No. 14,660).

In light of the above disposition, I need not address the parties" remaining contentions.