Appeal of MARTIN GOLDSTEIN from action of the Board of Education of the Patchogue-Medford Union Free School District regarding an alleged denial of the right to vote.

Decision No. 15,531

(February 14, 2007)

Guercio & Guercio, Esqs., attorneys for respondent, Gary L. Steffanetta and Douglas A. Spencer, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges certain actions at district meetings conducted by the Board of Education of the Patchogue-Medford Union Free School District (“respondent”) which he claims denied him the right to vote.  The appeal must be dismissed.

Petitioner is a resident of the Patchogue-Medford Union Free School District, and was a teacher in the district from 1968 to 1994.  Petitioner states that he is handicapped, and has severely limited mobility.

On Tuesday, May 16, 2006, petitioner drove to the Eagle Elementary School to vote at respondent’s annual meeting.  The Eagle Elementary School has two front entrances and a U-shaped driveway which has parking spaces for handicapped persons.  When petitioner arrived, approximately 900 students were being dismissed from school, and the driveway was filled with school buses.  It appears that a school crossing guard employed by the Suffolk County Police Department told petitioner that he could not enter the driveway at that time, asked him to leave temporarily, and suggested that he return in 15 or 20 minutes.  It is not clear from the record what petitioner did at that point, but apparently he did not vote.

Immediately thereafter, petitioner filed complaints with respondent, his state senator, the Suffolk County Police Department, and the local chapter of the New York Civil Liberties Union.

On June 20, 2006, petitioner again drove to the Eagle Elementary School to vote in a special district meeting following defeat of the district’s proposed budget on May 16.  Petitioner again arrived as students were being dismissed.  It appears that petitioner was told by a crossing guard that he could not enter the driveway during the dismissal process.  It is not clear exactly what petitioner did thereafter, but it appears that he did not vote.

Petitioner then filed complaints with respondent, his state senator, and multiple complaints with the Suffolk County Police Department.  In addition, on June 25, petitioner sent a letter addressed to the Office of Operations and Management Services of the New York State Education Department, outlining his complaints with respect to respondent.  On August 1, 2006, an auditor in the Office of Audit Services advised petitioner by email that he could file an appeal pursuant to Education Law §310.  Petitioner then commenced this appeal on August 7, 2006.

Petitioner alleges that he was denied the right to vote on June 20, 2006, and that respondent violated Election Law §4-104 and the Americans with Disabilities Act.  Petitioner asks that respondent be ordered to conduct all future district meetings at sites with full handicapped access, that respondent be ordered to comply with all county, state, and federal laws, and that respondent be ordered to conduct training for its employees concerning the Americans with Disabilities Act and all local and state laws concerning the disabled.  Petitioner does not challenge the result of the June 20, 2006, election.

Respondent generally denies petitioner’s claims, and points out that it was necessary to deny access to all vehicles to the Eagle Elementary School driveway for a period of approximately ten minutes on the afternoon of June 20 “owing to the need for a safe and orderly dismissal of the student body.”  Respondent presents numerous affirmative defenses, including untimeliness and lack of jurisdiction over various claims.  Respondent also points out that, as of September 2006, an additional parking area was under construction at the Eagle Elementary School.

     The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from 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 O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of E.M., 44 Ed Dept Rep 156, Decision No. 15,130; Appeal of R.A. and D.A., 43 id. 281, Decision No. 14,995).

Petitioner requests that I excuse the untimeliness of his appeal, but presents no unusual circumstances that would justify such action.  Petitioner alleges only that he did not become aware of the appeal process until August 1, 2006, and suggests that his unverified letter of June 25 should be treated as the commencement of a timely appeal.  However, prior Commissioners’ decisions have held that the sending of an unverified letter, not in compliance with the requirements of Part 275 of the Commissioner’s regulations, does not excuse the late commencement of an appeal (Appeal of Cushman, 42 Ed Dept Rep 116, Decision No. 14,793; Appeal of D.C., 41 id. 277, Decision No. 14,684; Appeal of Vigliotta, 40 id. 344, Decision No. 14,493).

Although I am dismissing the appeal, I am compelled to comment briefly on certain aspects of the matter.  I do not agree with petitioner that he was denied the right to vote on either occasion, because I do not believe that a few minutes delay rises to the level of a denial.  Petitioner was a long time employee of the district who worked at this particular school and certainly was familiar with the dismissal procedure.  Nevertheless, he came to vote during the dismissal time, twice, apparently to prove a point.  He admits in his reply that he knows that the Commissioner has no jurisdiction over claims brought pursuant to the Americans with Disabilities Act, and that the Election Law has no application to this matter.  It appears that petitioner harbors some animosity towards his former employer.  An appeal pursuant to Education Law §310 is not a proper vehicle to pursue such interests.  If petitioner is serious, he should pursue his remedies with the proper authorities (Appeal of Cochran, et al., 35 Ed Dept Rep 555, Decision No. 13,631; Appeal of Roberts, 33 id. 601, Decision No. 13,162; Appeal of Eagelfeld, 33 id. 256, Decision No. 13,042).

With respect to respondent, after the first incident on May 16, 2006, respondent’s superintendent advised petitioner’s state senator that crossing guards would be instructed to be “more supportive of handicapped voters,” and that it was “an isolated incident and will not occur again.”  However, there is no evidence before me that respondent took any action to prevent a recurrence, and in fact the same problem occurred on June 20, 2006.

In his affidavit dated August 25, 2006, respondent’s superintendent states that the U-shaped driveway was, on both May 16 and June 20, “the only designated means of entering said property by automobile.  Said property did not have a separate parking area for faculty, buses, students, and/or visitors.”  However, petitioner presents evidence, including photographs, indicating that the school has a parking lot on the east side of the building which has existed for 25 years, and further states that he used that lot when he was employed there.  Respondent’s memorandum of law dated September 25, 2006, states that an “additional parking area is presently under construction   . . .” and petitioner’s reply dated September 3, 2006, refers to “the reopening of the east side parking lot.”

These statements appear to indicate that, due to construction or refurbishment, the parking lot on the east side of the school was unavailable on the two occasions when petitioner claims he was prevented from voting, but that the construction or refurbishment should now be completed.  I strongly urge respondent to review its procedures for voting, and, if the Eagle Elementary School is to be used as a polling place in the future, to insure that adequate handicapped parking and access are available during the times the polls are open.

In view of this disposition, I need not discuss the parties’ other claims.

THE APPEAL IS DISMISSED.

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