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Decision No. 16,003


* Subsequent History: Matter of Bennett v Steiner; Supreme Court, Albany County; Judgment dismissed petition to review; June 30, 2010. *

Appeal of GARY T. BENNETT from actions of the Board of Education of the Massapequa Union Free School District, Christine Lupetin Perrino, Jane Ryan, Richard Krebs, Leslie Dowell, Gary Slavin and Steven Archipolo regarding an election.

Decision No. 16,003

(December 15, 2009)

Guercio and Guercio, attorneys for respondent board and respondents Christine Lupetin Perrino and Richard Krebs, Richard J. Guercio, Randy  Glasser and Joady B. Feiner, Esqs., of counsel

Vito V. Mundo, Esq., attorney for respondent Jane Ryan

STEINER, Commissioner.-- On or about June 16, 2008, petitioner commenced an appeal pursuant to Education Law §310 challenging certain actions of the Board of Education of the Massapequa Union Free School District (“respondent board” or “board”) in the conduct of the district’s annual election on May 20, 2008 (“the election”).  On February 19, 2009, Commissioner Mills issued a lengthy decision concluding that petitioner “failed to meet his burden of proof to establish that there were voting irregularities that affected the outcome of the election” and dismissing the appeal (Appeal of Bennett, 48 Ed Dept Rep 311, Decision No. 15,870).

Pursuant to Article 78 of the Civil Practice Law and Rules, petitioner appealed the decision to Supreme Court, Albany County on or about May 5, 2009.  In that proceeding, petitioner alleged, among other things, the appearance of impropriety in the §310 appeal because Kathy A. Ahearn, the Counsel and Deputy Commissioner for Legal Affairs at the time of the decision, later joined the law firm of Guercio and Guercio (“firm”), which represented respondent board and respondents Perrino and Krebs.

In a decision dated August 19, 2009, the Court found that in fairness to the parties, any appearance of impropriety should be addressed and remanded the appeal for the Commissioner to investigate whether Ms. Ahearn had any involvement in the matter and directed that the Commissioner reconsider his decision in light of that investigation.

Pursuant to the Court’s Order, on September 24, 2009 Interim Commissioner Carole F. Huxley[1] requested that the Department’s Director of Audit Services (“Director”) conduct an investigation into the matter.  On December 3, 2009, the Director issued his report in which he concluded that “there is no evidence that Ms. Ahearn had any involvement in the matter.”  He further found that support staff merely followed normal office protocols and inadvertently affixed Ms. Ahearn’s electronic signature on the correspondence that transmitted the appeal decision.

Accordingly, having considered the results of the independent investigation which found absolutely no impropriety in the appeal process, and having reviewed Decision No. 15,870, I hereby affirm and adopt that decision in its entirety for the reasons set forth therein.





[1] Commissioner Mills served as Commissioner through June 30, 2009.  Thereafter, Carole F. Huxley served as Interim Commissioner until October 1, 2009 when Commissioner Steiner assumed office.