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Decision No. 15,119


Appeal of DAVID E. MERANDY from action of the Board of Education of the Haldane Central School District regarding an election.



(September 30, 2004)


Keane & Beane, P.C., attorneys for respondent, Stephanie M. Roebuck, Esq., of counsel


     MILLS, Commissioner.--Petitioner, an unsuccessful candidate for reelection to the Board of Education of the Haldane Central School District ("respondent"), challenges the results of the May 18, 2004 school board election.  The appeal must be dismissed.

     On May 18, 2004, respondent conducted an election wherein three candidates ran for two seats on the board. Petitioner received 772 votes and the other two candidates received 863 and 778 votes respectively.  This appeal ensued.  Petitioner's request for interim relief was denied on June 28, 2004.

     Petitioner alleges that operational difficulties with, and the attempted repair of, one of the voting machines may have inadvertently affected the results of the school board election, and he questions the number of absentee ballots received.  Petitioner requests that the voting machine be examined by a certified technician, that the votes be recounted, that he be granted access to the absentee ballots, and that a new election be conducted, if appropriate.  In addition, petitioner requests permission to submit additional information pursuant to �276.5 of the Commissioner's regulations. 

     Respondent alleges that the voting machine malfunction and attempted repair did not affect the results of the election, and denies knowledge of a problem with the absentee ballot count.  Respondent alleges that the appeal should be dismissed for failure to state a cause of action and failure to name the successful candidates as necessary parties.  Respondent also alleges that petitioner requests relief that the Commissioner may not grant in an appeal brought pursuant to Education Law �310.

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 petitioner is a necessary party and must be joined as such (Appeal of Milazzo, 43 Ed Dept Rep ___, Decision No. 14,999; Appeal of Stolbach, 43 id. ___, Decision No. 14,977; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).  The rights of the successful candidates would be affected if the school board election were declared void and a new election ordered.  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 Milazzo, supra; Appeal of Stolbach, supra; Appeal of Gilmore and Jordan-Thompson, supra).  In this case, petitioner has not named or personally served the individual members of respondent board who were successful candidates in this election.  Therefore, the appeal must be dismissed for failure to join necessary parties.

In light of this disposition, I need not address petitioner's application to submit additional information or the parties' remaining contentions.