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Decision No. 16,310

Appeal of OMAR SALEH from action of John Makeyenko, Lisa Friend, Ronald Miller, Kevin Rozwood and Maureen Gambino as members of the Board of Education of the City School District of the City of Lackawanna regarding a board resolution.

Decision No. 16,310

(October 28, 2011)

Carl W. Morgan, P.C., attorney for respondents

KING, JR., Commissioner.--Petitioner, a member of the Board of Education of the City School District of the City of Lackawanna (“board”), seeks to prevent implementation of a board resolution.  The appeal must be sustained.

On November 18, 2010, at a regularly scheduled meeting, the five individually-named board members (“respondents”) approved a resolution designating the Martin Road Elementary School as the single election district and polling place for the annual budget vote and election of board members to be held on May 17, 2011.  Petitioner was absent from the meeting, and a seventh board member, Michael Sanders (“Sanders”), abstained.

At its meeting on February 10, 2011, the board approved a resolution authorizing the board clerk to prepare for the May 17, 2011 election by, among other things, arranging for the Martin Road Elementary School as the polling site.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 21, 2011.

Petitioner contends that the November 18, 2010 resolution circumvents Education Law §2604.  He asserts that the City of Lackawanna had a population of over 19,000 according to the 2000 census and, therefore, the district is ineligible under the statute to designate the school district as one election district.  He alleges that by designating only one polling site, the board is disenfranchising portions of the electorate.  He seeks to retain the use of the 11 election districts used in the last election, thus ensuring access for all district voters.

Respondents deny that they were circumventing the law or intending to disenfranchise voters.  They assert that the decision to use one polling place was made after extensive debate and research, including canvassing of 22 surrounding districts and analysis of the voter population and turnout for the last 10 years, and was in the best interest of the voters because it would save money without disrupting the voting process.  They contend that the appeal must be dismissed because the petition fails to state a claim upon which relief may be granted, fails to contain a clear and concise statement of the facts, fails to join a necessary party, and is untimely.  In addition, respondents assert that petitioner has failed to meet his burden of proof regarding the conduct of a school election.

I must first address several procedural issues.  Petitioner submits two verified replies: one to the affidavit in opposition to petitioner’s request for interim relief, served on March 25, 2011; and one to the answer, served on April 5, 2011.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed petitioner’s reply documents, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in respondents’ pleadings.

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).

Respondents contend that the appeal must be dismissed for failure to join Michael Sanders, the other member of the board, as a necessary party.  Although petitioner failed to serve Sanders, such failure does not necessitate dismissal of the appeal.  In actuality, petitioner is seeking relief not from action of the individually-named respondents, but rather from the board of education as an entity and its authority to vote on a resolution.  Although petitioner failed to name the board in the caption, he named the individual board members “as members of the Board of Education of the City School District of the City of Lackawanna” and personally served not only the board president but also the district clerk.  In addition, I note that respondents submitted an affidavit in opposition, an answer and a memorandum of law in response to the petition.  Therefore, since they had a fair opportunity to respond to the allegations in the petition, the caption provides sufficient notice that the appeal is being brought against members of the board of education in their official capacity as board members and there is no demonstrated prejudice, I find under the circumstances that service upon the district clerk and the board president is sufficient to confer jurisdiction over the board (8 NYCRR §275.8[a]; Appeal of Lander, et al., 42 Ed Dept Rep 201, Decision No. 14,822: Appeal of Goldin, et al., 40 id. 639, Decision No. 14,573; Appeal of Cole, et al., 37 id. 407, Decision No. 13,891).

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 petition was served on respondents on March 7, 2011.  Respondents contend that such service occurred approximately 107 days after the resolution was approved on November 18, 2010, and thus the appeal must be dismissed as untimely.  Petitioner argues that the appeal is timely because the petition was served within 30 days of the February 10, 2011 resolution.  While I agree with respondents that the “act complained of” is the approval of the November 18, 2010 resolution, in this case, I cannot dismiss the appeal as untimely.

The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).  As discussed below, the resolution is intrinsically unlawful.  Therefore, the continuing wrong doctrine applies.

Education Law §2604 provides:

The board of education of each city school district shall adopt a resolution on or before the first day of April, preceding the first annual school election held hereunder, dividing the city school district into school election districts.  The city school district shall be so divided that if circumstances will permit, school election districts will be coterminous with one or more general election districts, and that, if practicable, there shall be a schoolhouse in each election district.  The election districts thus formed shall continue in existence until modified by resolution of the board of education . . . Notwithstanding the foregoing provisions of this section, the board of education of any city school district of a city of less than ten thousand inhabitants may, by resolution, designate the entire city school district as a single school district [sic].[1] 

The resolution approved on November 18, 2010 provides in part:

BE IT FURTHER RESOLVED, that a single polling place for the conduct of the annual election for the Board Members and District Budget vote shall be located at the Martin Road Elementary School . . .

Petitioner alleges that, according to the 2000 census, the population of Lackawanna was 19,064.  The board president avers in his affidavit that “[u]pon further information and belief, a projection of the population of the City states that the City’s current population is many thousands less than that which petitioner sets forth as the population of the City pursuant to the 2000 census.”  The statute requires, however, that in order for a board of education of a city district to propose a resolution designating the entire district as a single election district, that city must have a population under ten thousand inhabitants.  Since the board has failed to establish that the population meets this threshold requirement, its November 18, 2010 resolution proposing a single election site for the district violates the statute and thus is inherently illegal.

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


IT IS ORDERED that the Board of Education of the City School District of the City of Lackawanna rescind the resolution approved on November 18, 2010.


[1] McKinney’s Consolidated Laws of New York, Annotated, Education Law §§2601-3500, 2009 at p.17, contains a footnote stating that the final clause should probably read “single school election district.”