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Decision No. 15,796

Appeal of SCOTT A. SCHULTZ from action of the Board of Education of the City School District of the City of North Tonawanda regarding an election.

Decision No. 15,796

(July 28, 2008)

Bond, Schoeneck & King, PLLC, attorneys for respondent, John A. Miller, Esq., of counsel

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for election to the Board of Education of the City School District of the City of North Tonawanda (“respondent” or “board”), appeals certain actions of the board regarding the election.  The appeal must be dismissed.

The deadline for filing a nominating petition as an at-large candidate for the board’s May 20, 2008 Annual District Meeting and Election was 5:00 p.m. on April 30, 2008.  The district clerk avers that he received seven nominating petitions, including one from petitioner.  He rejected one petition, however, because it was filed after 5:00 p.m. and lacked the requisite number of signatures.  At 3:30 p.m. the following day, the district clerk held a lottery to determine the order and placement of the candidates’ names on the ballot.  Petitioner’s name was drawn second out of the six remaining candidates.

On May 2, 2008, candidate Leslie Stolzenfels notified the district clerk by telephone that she intended to withdraw.  After conferring with district counsel, the district clerk advised Ms. Stolzenfels to provide him with written notice of her withdrawal.  By letter dated May 3, 2008, Ms. Stolzenfels provided written notification, which the district clerk received the next day.  By letter dated May 5, 2008, the district clerk accepted the withdrawal.

Following further advice of counsel, the district clerk extended the filing deadline for nominating petitions to 5:00 p.m. on May 13, 2008.   Two additional candidates, Matthew MacNeil and Kimberly Robertson, submitted timely petitions with the requisite number of signatures.  Thereafter, the district clerk conducted a new lottery to determine ballot position and placement of the candidates’ names.  The district clerk decided to conduct the lottery immediately following the 5:00 p.m. deadline rather than the next day because of the urgent need to print absentee ballots and ballot strips.  Petitioner’s name was drawn sixth out of the seven candidates.

The election took place on May 20, 2008.  Candidates Michael Carney, Frank DiBernardo and Kimberly Robertson received the three highest vote totals and were elected.  Petitioner received the sixth lowest total of the seven candidates.  This appeal ensued.

Petitioner contends that Ms. Stolzenfels was improperly permitted to withdraw her nominating petition after the deadline for filing had passed.  Petitioner appears to claim that, based on allegedly incorrect legal advice, respondent improperly extended the nominating deadline after Ms. Stolzenfels’ withdrawal, which resulted in the inappropriate inclusion of other names on the ballot.  Petitioner requests that I invalidate the election and order a new election limited to those candidates who filed nominating petitions prior to the first deadline.  Petitioner also requests that I order legal counsel to attend board meetings, follow the rules regarding executive sessions during meetings, and that I clarify, amend and allow public access to the Education Law.

Respondent asserts that the petition must be dismissed for failure to join necessary parties and for failure to contain a clear and concise statement of petitioner’s claim for relief.  It further asserts that petitioner has failed to meet his burden of proving that he has been aggrieved by any act or omission by respondent or that any irregularities occurred or affected the outcome of the election.  In addition, respondent contends that the Commissioner lacks: jurisdiction over petitioner’s allegations regarding executive sessions; authority to order the attendance of legal counsel; and authority or jurisdiction to amend the Education Law or provide for investigations.  Finally, respondent alleges that the petition 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 served the petition on May 20, 2008.  Therefore, the appeal is timely both to the extent petitioner appeals the district clerk’s acceptance of Ms. Stolzenfels’ withdrawal on May 5, 2008, and to the extent he challenges the outcome of the May 20 election.

The appeal, however, 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 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 a copy of his petition on the successful candidates, Michael Carney, Frank DiBernardo or Kimberly Robertson, nor did he name them as respondents.  In addition, petitioner failed to serve a petition upon Matthew MacNeil and Kimberly Robinson.  The appeal must, therefore, be dismissed for failure to join necessary parties.

Although petitioner did not raise specific allegations regarding executive sessions, I note that Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Stolbach, 43 Ed Dept Rep 218, Decision No. 14,977; Appeal of Taber, 42 id. 251, Decision No. 14,843; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785).  In addition, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of W.T.B. and M.B., 44 Ed Dept Rep 152, Decision No. 15,129; Appeal of Qureshi, 43 id. 504, Decision No. 15,066; Appeal of Simmons, 43 id. 7, Decision No. 14,899).

Although the appeal is dismissed on procedural grounds, Education Law §2608(1) permits the extension of the nominating deadline if a candidate withdraws within a certain time period.

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