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Decision No. 15,136


Appeal of JAMES OCKIMEY from action of the Board of Education of the Uniondale Union Free School District regarding an election.


Decision No. 15,136


(November 17, 2004)


Ingerman Smith, LLP, attorneys for respondent, Lawrence W. Reich, Esq., of counsel


MILLS, Commissioner.--Petitioner, an unsuccessful candidate for election to the Board of Education of the Uniondale Union Free School District (�respondent�), appeals the conduct of a school district election.  The appeal must be dismissed.

On May 18, 2004, respondent conducted its annual meeting and election for the purpose of voting on a proposed school district budget and filling two seats on respondent board.  Incumbent Raymond Rhoden defeated petitioner by a margin of 345 votes, incumbent Deborah Mabry defeated Elaine Portuondo-Smith by 484 votes, and the voters approved the annual budget by a margin of 215 votes.

Petitioner contends that respondent improperly permitted members of the Uniondale Teachers Association (�Union�) to disseminate a flyer at polling places during school hours.  He asserts that the flyer improperly urged voters to reelect the two incumbent board members and vote in favor of the budget.  Petitioner contends that district facilities, employees and funds were used to disseminate the flyer.  He further contends that �[t]he budget passed by about 320 votes which could not be verified with the Buff cards for the books.�  Petitioner maintains that these irregularities affected the outcome of the election.  Petitioner seeks to overturn the election and requests that respondent be prohibited from spending any funds in excess of the amount it could have levied under a contingent budget.  Petitioner�s request for interim relief was denied on July 7, 2004.

Respondent asserts that the appeal is untimely and must be dismissed for failure to join necessary parties.  Respondent alleges that the Union prepared and distributed the flyer, which was on Union letterhead, without any support, knowledge or funding from district sources.  Respondent denies any wrongdoing in the conduct of the election and asserts that petitioner has failed to demonstrate that any alleged irregularities occurred or affected the outcome of the election.

I must first address petitioner�s attempt to bring this appeal on his behalf and behalf of �all others similarly situated.�  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR �275.2; Appeal of Garmaeva, 43 Ed Dept Rep ___, Decision No. 14,988; Appeal of Colety, et al., 42 id. 162, Decision No. 14,806; Appeal of Broardt, et al., 42 id. 126, Decision No. 14,796).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Recore, 42 Ed Dept Rep 283, Decision No. 14,856; Appeal of Colety, et al., supra).  Petitioner makes no assertion that he represents any individuals other than those identified in the caption of the petition.  Accordingly, class status is denied.

The appeal must be dismissed as untimely.  An appeal to the Commissioner of Education must be commenced within 30 days of the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of Long, 39 Ed Dept Rep 463, Decision No. 14,284).  Petitioner did not commence this appeal until June 18, 2004, 31 days after the election, and offers no excuse for the delay.

The petition must also be dismissed for failure to join the successful board candidates as 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 named as such and served with a notice of petition and petition (Appeal of Ewart, 44 Ed Dept Rep ___, Decision No. 15,127; Appeal of Milazzo, 43 id. ___, Decision No. 14,999; Appeal of Stolbach, 43 id. ___, Decision No. 14,977).  If an appeal involves the validity of a school district meeting or election, the petition must be served upon each successful candidate whose right to hold office is disputed and such person must be joined as a necessary party (8 NYCRR �275.8[d]; Appeal of VanAllen, 38 Ed Dept Rep 701, Decision No. 14,122).  In this case, a decision in petitioner�s favor would clearly affect the rights of Mr. Rhoden and Ms. Mabry, and neither was named as a respondent or served with a copy of the notice of petition or petition.  Accordingly, petitioner�s failure to do so requires dismissal of the appeal.

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