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Decision No. 16,182

Appeal of SUE A. FRIES from action of the Board of Education of the City School District of the City of Salamanca regarding an election.

Decision No. 16,182

(December 9, 2010)

Hodgson Russ LLP, attorneys for respondent, Karl W. Kristoff, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Salamanca (”respondent” or “board”) to nullify the result of the May 2010 school board election.  The appeal must be dismissed.

At all times relevant to the present dispute, petitioner served as a Commissioner of the Cattaraugus County Board of Elections (“Commissioner”).  At the May 18, 2010 annual election, petitioner, along with two other candidates, Eric A. Butler (“Butler”) and Sharon Ray (“Ray”), ran for a seat on the school board.  At its regular meeting on May 25, 2010, respondent canvassed the votes reported by the election inspectors and found that petitioner received the greatest number of votes, with Butler second and Ray third.

By letter dated June 3, 2010, respondent’s president notified petitioner that respondent could not appoint her to the board because, as a Commissioner, she was ineligible to hold a position on the board, and Butler was declared the winner.  This appeal ensued.

Petitioner contends that respondent lacks the authority to deny her a seat on the board since it accepted her nominating petition without objection.  Alternatively, she contends that an appointment to the position is not required and she is entitled to merely claim the office to which she was elected.  Petitioner also contends that the Election Law is inapplicable.  Finally, petitioner asserts that respondent has deprived her of her constitutional rights and abridged her right to choose which office she will hold.

Respondent asserts that the appeal must be dismissed for failure to join necessary parties and for failure to state a claim upon which relief may be granted.  Respondent asserts that petitioner was ineligible to be a candidate for the board and that it properly declared Butler the winner.  Finally, respondent maintains that an appeal is not the proper forum to adjudicate novel issues of constitutional law.

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).  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 the petition on the successful candidate, Butler, nor did she name him as a respondent.  The appeal must, therefore, be dismissed for failure to join Butler as a necessary party.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Election Law §3-200(4) provides:

No person shall be appointed as election commissioner or continue to hold office who is not a registered voter in the county and not an enrolled member of the party recommending his appointment, or who holds any other public office, except that of commissioner of deeds, notary public, village officer, city or town justice, member of a community board within the city of New York or trustee or officer of a school district outside of a city (emphasis added).

Election Law §3-200(6) further provides:

An election commissioner shall not be a candidate for any elective office which he would not be entitled to hold under the provisions of this article, unless he has ceased by resignation or otherwise, to be commissioner prior to his nomination or designation therefor.  Otherwise such nomination or designation shall be null and void.

Petitioner argues that the Election Law does not apply.  She contends that because the district’s boundaries are not coterminous with the city of Salamanca, the district should be deemed to be a “school district outside of a city,” thus falling under the statutory exception in Election Law §3-200(4) and making her an eligible candidate.  Petitioner’s argument is unavailing.  The statutory definition of a city school district does not require that the district’s boundaries be coterminous with the city’s boundaries (see Education Law §2(16); seealso Education Law §§1524, 1525).  Moreover, I take judicial notice of the official records of the State Education Department that respondent’s school district is a central city school district formed pursuant to the provisions of Chapter 610 of the Laws of 1950 as amended, and as such, is designated as a city school district and subject to the applicable city school district provisions in the Education Law (Article 51).  Thus, the district is not a “school district outside of a city” within the meaning of Election Law §3-200(4).

In accordance with a plain reading of the statutes cited above, therefore, petitioner is prohibited under the Election Law from simultaneously holding a position as an election commissioner and a member of the board (see 1987 Ops Atty Gen 87-50).  Although respondent admits that it accepted petitioner’s nominating petition and placed her name on the ballot, it asserts that it did so with the mistaken belief that petitioner intended to retire or resign from her position as a Commissioner.  In light of petitioner’s failure to do so prior to the election, the statute required that respondent declare petitioner’s election to be a nullity (see 1987 Ops Atty Gen 87-50).  Accordingly, respondent acted within its authority when it nullified the election results and declared Butler the winning candidate.

Finally, an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a regulation (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677; Appeal of The Croton Free Library, Inc., 47 id. 182, Decision No. 15,662).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).  In addition, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).

In light of this disposition, I need not address petitioner’s remaining contention.