Appeal of DONETTE C. DARROW from action of the Board of Education of the Kenmore-Tonawanda Union Free School District regarding an election.

Decision No. 15,538

(February 27, 2007)

 

Harris Beach PLLC, attorneys for respondent, Herbert J. Glose, Esq., of counsel

MILLS, Petitioner.--Petitioner challenges actions of the Board of Education of the Kenmore-Tonawanda Union Free School District (“respondent”) regarding its May 16, 2006 school board election. The appeal must be dismissed.

On May 16, 2006, respondent conducted an annual meeting to elect two board members. One position was for a three-year term and the other was for a two-year term, as a result of a vacancy. The candidate with the highest number of votes was to fill the three-year term, and the individual with the second highest number was to fill the two-year term. Two candidates were on the ballot and petitioner ran a write-in campaign. Candidates Lou Reuter, Thomas Noonan and petitioner, received 2840, 2826 and 220 votes, respectively. This appeal ensued.

Petitioner alleges that misconduct on the part of inspectors from the Erie County Board of Elections took place at three polling sites. She claims that election inspectors misinformed voters by telling them that it was illegal to cast a write-in ballot or that they had to vote for two candidates. Additionally, she contends that in some instances when voters requested instruction on how to write in a name on the ballot, inspectors were unable to assist them. Petitioner submits six affidavits from voters complaining of this alleged misconduct. Petitioner requests that I invalidate the results 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 petition should be dismissed as it offers no supporting documentation of its claims and that it is 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). Petitioner attempted to commence this appeal on June 15, 2006, 30 days after the May 16, 2006 election. However, she did not properly serve respondent as required by §275.8 of the Commissioner’s regulations until June 27, 2006, more than 30 days after the election. Therefore, the appeal must be dismissed as untimely.

The petition must also 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 a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253). Joinder requires that an individual be clearly named as a respondent in the caption 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 Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253). 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). Petitioner did not serve the successful candidates, Lou Reuter and Thomas Noonan, with a copy of her petition nor did she name them as respondents in the petition. The appeal must, therefore, be dismissed for failure to join necessary parties.

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

THE APPEAL IS DISMISSED.

END OF FILE