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Decision No. 16,181

Appeal of WILLIAM A. WATSON, II, from action of the Board of Education of the Hempstead Union Free School District regarding an election.

Decision No. 16,181

(December 9, 2010)

Guercio & Guercio, LLP, attorneys for respondent, John P. Sheahan, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals actions of the Board of Education of the Hempstead Union Free School District (“respondent” or “board”) regarding the conduct of the district’s May 2010 school board election.  The appeal must be dismissed.

On May 18, 2010, the district held its annual school board election and budget vote.  Petitioner was one of four candidates for two positions as board trustee.  He asserts that at the close of the polls, he and Brandon Ray (“Ray”) were the two winning candidates, but, after the district clerk (“clerk”) counted the absentee ballots, she declared JoAnn Simmons (“Simmons”) the winner over him by five votes.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 30, 2010.

Petitioner alleges that numerous irregularities in the conduct of the election affected its outcome.  Specifically, he asserts that the clerk: counted the absentee ballots in her office; closed the polls five minutes early and denied an eligible voter who intended to vote for him the opportunity to vote; improperly denied an absentee ballot to an incarcerated individual who also intended to vote for him; failed to prevent Ray’s mother from improperly electioneering; impermissibly entered the voting booth with voters; and denied him the opportunity to review all the election results, including sign-in sheets, machine tallies and absentee and paper ballots.  He also alleges that: the clerk and three members of Simmons’ campaign improperly electioneered in favor of Simmons at an extended Care Facility on election day; three nonresidents were improperly permitted to vote; respondent’s president was permitted to remain in the polling area; and the paper ballot of a voter who intended to vote for him was lost.  Petitioner seeks access to the election material and an opportunity to recanvass it to insure that the vote count was fair and accurate.

Respondent raises a number of procedural defenses including the manner of service, failure to join necessary parties, timeliness and mootness.  Respondent also contends that petitioner has failed to demonstrate a clear legal right to the relief requested, failed to establish the facts upon which he seeks relief and failed to meet his burden of proof.  Respondent asserts that the election results have been certified, petitioner’s allegations are speculative, no electioneering occurred, and the election was properly conducted.

The appeal must be dismissed for improper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

Petitioner’s affidavit of service shows that service of the petition was made upon Ana Lovasz, who is the secretary to the superintendent of schools.  Lovasz avers in an affidavit that she is not authorized to receive legal papers on behalf of the district.  She also avers that when the process server inquired where the district clerk’s office was located she informed him that it was down the hall and that the clerk was not present; after pointing down the hall, Lovasz informed the process server that she could place the papers in the clerk’s box but that she would not sign for the papers.  Petitioner submits no reply to contradict Lovasz’s assertion.  Accordingly, where as here there is no proof that an individual has been authorized to accept service on behalf of the respondent, service on that individual is improper and the appeal must be dismissed for improper service (Appeal of Terry, 50 Ed Dept Rep ___, Decision No. 16,117; Appeal of Villanueva, 49 id. 54, Decision No. 15,956; Appeal of DeMarco, 48 id. 252, Decision No. 15,850).

The appeal is also 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The election occurred on May 18, 2010.  Accordingly, petitioner had until June 17, 2010 to commence an appeal.  Petitioner’s affidavit of service reveals that service of the petition was made on June 18, 2010.  Petitioner has offered no excuse for the delay.  His untimely appeal, therefore, must be dismissed.

The appeal 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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Moreover, §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 supplied).

Although petitioner does not specifically request that the election results be overturned, he requests an opportunity to review the votes, which could affect the election results and therefore the outcome of the election.  Petitioner did not serve the two winning candidates, Simmons or Ray, with a copy of the notice and petition nor did he name them as respondents in this appeal.  Accordingly, the appeal must be dismissed for failure to join necessary parties.

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