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Decision No. 16,210

Appeal of KALIAH GREENE and HELEN MOSS from action of the Board of Education of the Brentwood Union Free School District and Pauline Lalor-Cuevas, district clerk, regarding an election.

Decision No. 16,210

(March 25, 2011)

Ingerman Smith, L.L.P., attorneys for respondents, Neil M. Block, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal actions of the Board of Education of the Brentwood Union Free School District (“board”) and district clerk Pauline Lalor-Cuevas (“district clerk”) 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.  Petitioners were two of four candidates for two trustee positions on the board.  At the close of the polls, the district clerk initially reported vote tallies indicating that petitioner Moss had defeated candidate Lorraine Pace (“Pace”) and petitioner Greene lost to candidate George Talley (“Talley”) by only one vote.  Thereafter, the district clerk reported tallies indicating that both petitioners were defeated in the election, with petitioner Greene defeated by more than 100 votes.  On May 27, 2010 the board held a special meeting apparently to certify the results of the election.  This appeal ensued. 

Petitioners allege several irregularities in the conduct of the election and contend that any discrepancy in the recording of votes was due to the district clerk’s incompetence or election fraud.  Specifically, petitioners assert that no affidavit ballot poll list was provided, that a voting machine was tampered with and that the alleged fraud affected the outcome of the election for both trustee positions.  They also contend in affidavits attached to the petition, that electioneering took place and that certain voters of color improperly were asked for identification prior to voting and that some of petitioners’ poll watchers were prevented from entering polling places.  Petitioners seek annulment of the election results and a revote for the two trustee positions, an order prohibiting Talley and Pace from running for office as trustees both for the school district and the Brentwood Public Library, and a protective order to terminate Talley’s and Pace’s access to personnel records of petitioners’ family members. 

Respondents maintain that the petition must be dismissed for failure to join necessary parties.  Respondents also contend that while the district clerk may have inadvertently reported the election results erroneously, no violation of law or regulation occurred in connection with the vote.  Respondents also assert that any irregularity that may have occurred did not affect the outcome of the election and does not warrant annulment of the results.  Respondents provide an affidavit from the district clerk explaining the initial reporting discrepancy and subsequent corrections.

The appeal 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 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).

Because annulment of the election and a revote would affect Talley and Pace, as the winning candidates, they are necessary parties to the appeal (Appeal of Watson, 50 Ed Dept Rep ___, Decision No. 16,181; Appeal of McIntyre and Devis, 49 id. 333, Decision No. 16,045; Appeal of Defeo, 49 id. 322, Decision No. 16,042)).

Both Talley and Pace submitted affidavits averring that they were not personally served with the petition.  Petitioners did not submit a reply or any other evidence to contradict these sworn assertions.  Because petitioners failed to name or serve Talley and Pace as respondents, they have not been properly joined.  Accordingly, the appeal must be dismissed.

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