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Decision No. 15,125


Appeal of NANCY STANTON from action of the Board of Education of the Deposit Central School District regarding an election.



(October 7, 2004)


Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondent, Wendy K. DeWind, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges actions of the Board of Education of the Deposit Central School District (�respondent�) regarding its May 18, 2004 school board election.  The appeal must be dismissed.

On May 18, 2004, respondent conducted an annual meeting to vote on the proposed school district budget and to elect members to the board of education.  Two incumbents, David Bergstrom and Mark Clark, and one new candidate, Thomas Keefe, ran for two seats on the board.  Candidates Bergstrom, Clark and Keefe received 228, 191 and 65 votes, respectively.  This appeal ensued.

Petitioner alleges that respondent failed to provide notice to district residents regarding the school board election and that the placement of the candidates on the voting machine was confusing.  Petitioner further alleges that after the election, respondent held an unannounced school board meeting regarding the election, and failed to invite the reporter for the official newspaper for the district and candidate Keefe.  Petitioner also alleges that the respondent�s attorney made incorrect statements at the meeting about how to appeal the election results.  Petitioner requests that I invalidate the school board election and order a new election.

Respondent denies petitioner's allegations and contends that petitioner has failed to state a cause of action. Respondent also contends that the appeal must be dismissed for petitioner's failure to join the school board candidates as necessary parties to this appeal.

The appeal 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 Jordon-Thompson, supra). 

Although it appears that petitioner attempted to personally serve a petition on David Bergstrom on June 2, 2004, it failed to name Mr. Bergstrom in the caption and, in any event, was rejected as defective by my Office of Counsel on June 15, 2004.  While petitioner subsequently served a corrected petition, she failed to name or serve either Mr. Bergstrom or Mark Clark.  The appeal must, therefore, be dismissed for failure to join them as necessary parties.

Since the appeal is dismissed on procedural grounds, I need not address the parties' remaining contentions.