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Decision No. 15,952

In the MATTER OF COMMUNITY ADVOCATES FOR EDUCATIONAL EXCELLENCE, on behalf of LORI F. THOMAS, from action of the Board of Education of the City School District of the City of Rochester and  Jean-Claude Brizard, Superintendent, regarding an election.

Decision No. 15,952

(July 23, 2009)

Rashondra M. Jackson, Esq., attorney for respondents

Huxley, Interim Commissioner.--Community Advocates for Educational Excellence (“petitioner”), on behalf of Lori F. Thomas (“Thomas”), challenges the results of a special election conducted by the Board of Education of the City School District of the City of Rochester ("respondent board" or "board").  The appeal must be dismissed.

On February 9, 2009, respondents conducted a special  election for the purpose of electing members to a new districtwide Parent Advisory Council (“Council”).  Petitioner contends that Thomas was nominated as a candidate for the Council and that the district’s Office of Parent Engagement neglected to place her name on the ballot.  Petitioner requests that I invalidate the election results and investigate the election.

Respondents allege that the appeal is untimely and maintain that the Office of Parent Engagement never received a nomination for Thomas. 

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The election was held on February 9, 2009 and the appeal was commenced on March 10, 2009, within the 30-day time frame.  Therefore, the appeal is timely.

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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).

Here, petitioner seeks to overturn the results of the Council election.  Thus, the rights of the winning candidates would clearly be affected if the petition were granted.  Petitioner did not name these individuals as respondents in the caption of the petition or in the notice of petition, nor did she personally serve them with copies of the notice of petition and petition.  The appeal must, therefore, be dismissed.

In addition, the appeal must be dismissed for lack of standing.  Petitioner is an unincorporated association, and as such, it lacks standing to maintain an appeal under Education Law §310 (seeAppeal of Hempstead Parents/Community United, 45 Ed Dept Rep 381, Decision No. 15,357; Application of Simmons, 43 id. 7, Decision No. 14,899; Appeal of D’Oronzio and D’Agostino, 41 id. 457, Decision No. 14,745).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Respondents assert that nominations were accepted until December 19, 2008 and it never received a nomination form for Thomas.  The only evidence submitted by petitioner are copies of emails from Thomas to the Program Administrator of respondent’s Office of Parent Engagement in January 2009 complaining that she was not listed as a candidate.  This evidence post-dates the submission deadline and does not demonstrate that a timely nomination was submitted. Accordingly, petitioner has failed to meet its burden of demonstrating a right to the relief requested.

Finally, with respect to petitioner's request that I conduct an investigation of the matters set forth in the petition, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Application of V.M., 46 Ed Dept Rep 531, Decision No. 15,584; Appeal of Koehler, 46 id. 425, Decision No. 15,553).