Appeal of RUTH ANN BUZZARD, on behalf of the RESIDENTS OF THE RANSOMVILLE AREA, from action of the Board of Education of the Wilson Central School District regarding voting locations.

Decision No. 16,623

(June 20, 2014)

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

KING, JR., Commissioner.--Petitioner challenges action of the Board of Education of the Wilson Central School District (“respondent” or “the board”) designating a single polling place for voters at its annual May 2013 meeting and election. The appeal must be dismissed.

Petitioner is a resident of Ransomville, New York, within respondent’s district. Respondent has historically conducted its annual meeting and election at one polling place located at its Wilson Central School campus. In or around December 2012, petitioner approached various members of the board and asked them to consider establishing two polling locations for the May 2013 annual meeting and election. Petitioner advocated for the establishment of a second polling place to be located at the Stevenson Elementary School in Ransomville. Respondent initially discussed the matter at its January 22, 2013 meeting. At its February 12, 2013 meeting, respondent declined to establish a second polling place and kept the polling location at the Wilson Central School campus. This appeal ensued.

Petitioner objects to the designation of only one polling place, contending that it will limit voting participation of district residents. Petitioner appears to bring this appeal on behalf of “residents of the Ransomville area.” Petitioner requests that I order respondent to designate a second polling place at the Stevenson Elementary school in Ransomville to accommodate voters from the Ransomville area.

Respondent contends that the appeal must be dismissed as moot and untimely. Respondent maintains that petitioner may not maintain the appeal as a class action and that she has failed to establish a clear legal right to the relief requested. Respondent further argues that its determination was not arbitrary and capricious and was in all aspects proper.

I must first address several procedural issues. Petitioner has submitted an additional document entitled “Verified Response” which appears to constitute her reply. While I will accept petitioner’s verified response as a reply, 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 “Verified Response,” I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797). A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797). In her “Verified Response,” petitioner states that she is not seeking to appeal on behalf of a class of individuals. Furthermore, petitioner’s pleadings are entirely devoid of any allegations addressing the criteria required for a class action. Thus, class status cannot be granted.

The appeal must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). Petitioner’s appeal involves the designation of polling places for the district’s May 2013 annual meeting and election. Petitioner commenced her appeal on April 23, 2013 and did not seek interim relief. Prior to the appeal being fully submitted, the May 2013 annual meeting and election took place. Therefore, the relief sought cannot be granted and the matter is moot. I note that no appeal from the May 2013 vote was taken.

In addition, 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).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). Since the appeal was not commenced until April 23, 2013, more than 30 days after the February 12, 2013 meeting at which respondent made the challenged determination and petitioner offers no excuse for the delay, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner has failed to allege – and prove – that respondent violated any statute or regulation in deciding to hold its annual meeting at one polling location. Education Law §2002(1) provides in pertinent part, as follows:

The annual meeting and election of each school district shall... be held in the schoolhouse... in the case of a school district that is not divided into election districts and conducts its election or vote by recording the ayes and noes of the qualified voters attending,... If a district possesses more than one schoolhouse, it shall be held in the one usually employed for that purpose, unless the trustees or board of education designate another, ....

According to the record, the district is not divided into election districts and respondent has historically held its annual meeting and election at the Wilson Central School campus. Therefore, respondent acted in accordance with §2002(1) by designating the “usually employed” schoolhouse as the location for its annual meeting in May 2013.

Further, §2002(1) does not require respondent to create a second or alternative polling location for the annual meeting. Education Law §2017(1) states that a board of education “may upon its own motion divide the school district into election districts.” This provision is made applicable to a central school district by Education Law §1804(1). Respondent has not divided the district into election districts. Therefore, it was not required to create two polling locations.

Petitioner has offered no evidence that any voter would be prejudiced by respondent’s decision to maintain a single polling location. Petitioner has not submitted any evidence of any irregularity or violation of law in maintaining one polling location. In sum, on this record, petitioner has not met her burden of proof and I find no basis to substitute my judgment for that of respondent in this matter.

THE APPEAL IS DISMISSED.

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