Decision No. 17,836
Appeal of the BOARD OF EDUCATION OF THE GILBERSTVILLE-MOUNT UPTON CENTRAL SCHOOL DISTRICT regarding an election.
Decision No. 17,836
(April 27, 2020)
Hogan, Sarzynski, Lynch, DeWind, & Gregory, LLP, attorneys for petitioner, Wendy K. DeWind, Esq., of counsel
TAHOE., Interim Commissioner.--Petitioner, the Board of Education of the Gilbertsville-Mount Upton Central School District, seeks an order pursuant to Education Law §2037 to correct the terms of office of two board members, Cole Covington and Brian Underwood. The appeal must be sustained to the extent indicated below.
Zachary Proskine and Mark Muller were elected as members of petitioner board to terms of office that ran from July 1, 2017 through June 30, 2020. Between the district’s 2018 and 2019 annual meetings, Proskine and Muller resigned from office.
On December 12, 2018, petitioner board appointed Larry Smith to fill the board seat vacated by Proskine until the next school board election, on May 21, 2019. On February 13, 2019, petitioner likewise appointed Underwood to fill the seat vacated by Muller until the next school board election, on May 21, 2019.
There were thus four open seats to be voted upon at the May 21, 2019 election: two partial terms for the seats vacated by Proskine and Muller, and two full, three-year terms for the seats of non-parties Barbara Hill and Jeremy Pain, whose terms of office were expiring.
On March 13, 2019, petitioner approved a notice of annual meeting which stated, in pertinent part:
The following vacancies are to be filled:
A three[-]year term ending June 30, 2022 presently held by Jeremy Pain.
A three[-]year term ending June 30, 2022 presently held by Barbara Hill.
A three[-]year term ending June 30, 2022 presently held by Larry Smith.
A three[-]year term ending June 30, 2022 presently held by Brian Underwood.
Petitioner acknowledges that this information was inaccurate, stating in its petition that “[t]he [n]otice of [a]nnual meeting ... incorrectly listed all four terms to be three[-]year terms ending June 30, 2022 ... Two of the terms should have been one[-] year terms starting on 5/21/19 and ending on 6/30/2020 as they were seats from the resigned [b]oard [m]embers.”
Four candidates ran for the four open seats: Covington, Underwood, Smith, and Pain. The ballot instructed voters to “[v]ote for FOUR candidates” by checking the box next to the names of the candidates. The ballot did not include information regarding the length of the available terms of office, nor did it include the names of the incumbent board members whose seats were up for election.
The election results were as follows: Smith received 138 votes; Pain received 134 votes; Covington received 132 votes; and Underwood received 130 votes.
On December 4, 2019, petitioner authorized its counsel to commence the instant appeal “[u]pon learning that two [b]oard terms [we]re currently incorrect, and that the voters approved the incorrect terms ....” This appeal ensued.
Petitioner contends that Covington and Underwood should have received terms ending June 30, 2020. Specifically, petitioner maintains that Smith and Pain, as the candidates who received the most votes at the May 2019 election, properly received the two available three-year terms and, therefore, Covington and Underwood are entitled only to the remainder of the terms left vacant by Proskine and Muller. For relief, petitioner “requests that the terms of Covington and Underwood be declared to be 5/21/2019 through 6/30/2020 or[,] in the alternative, that the election results of the 2019 [a]nnual [m]eeting pertaining to the terms of Covington and Underwood be declared null and void.”
“A school district office becomes vacant by death, resignation, refusal to serve, incapacity, or removal from the district or from office” (Education Law §2112). Where a seat on a board of education becomes vacant, the remaining board members have a duty to appoint a replacement to “hold [such] office until the next regular school district election” (Education Law §§1709; 1804; Appeal of O’Bomsawin, 37 Ed Dept Rep 554, Decision No. 13,925). At the time of such school district election, district voters shall then elect a candidate to fill the vacant board seat “for the balance of the unexpired term” (Education Law §2113[c]).
Here, the resignations of Proskine and Muller created two vacant board seats with terms expiring June 30, 2020, which petitioner filled by appointment through May 21, 2019 – “the next regular school district election” (Education Law §1709). Petitioner then placed these vacant seats on the ballot for the May 2019 election, along with two seats made available by the expiration of the incumbents’ terms. Although petitioner’s notice of annual meeting indicated that all four board seats to be filled by the May 2019 election were for full three-year terms, Education Law §2113(c) dictates that the two seats left vacant by Proskine and Muller could only be filled “for the balance of the unexpired term[s].” Thus, the notice of annual meeting was incorrect, as petitioner concedes.
In light of the Commissioner’s exclusive jurisdiction over “[a]ll disputes concerning the validity of any district meeting or election” (Education Law §2037), I will exercise my discretion to clarify the terms of office for Covington and Underwood. It is clear that the voters intended to elect the four candidates listed on the ballot to the four open seats on petitioner’s board and did so. However, because voters at the May 2019 election could not legally have elected all four candidates to full three-year terms, and Covington and Underwood received the fewest number of votes in the May 2019 election results, I find that the only equitable result is that Covington and Underwood receive the two unexpired, one-year terms for the board seats left vacant by the resignations of Proskine and Muller.
While I am constrained to sustain the appeal under the unique circumstances of this case, I admonish petitioner to henceforth follow all applicable laws regarding the conduct of its elections and ensure the accuracy of all information provided to district voters.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the actions of petitioner board of education in declaring that Cole Covington and Brian Underwood were elected to three-year terms of office at the May 21, 2019 school district election be, and hereby are, annulled; and
IT IS FURTHER ORDERED that the May 21, 2019 school board election be corrected in conformity with this decision and that Cole Covington and Brian Underwood each be declared elected to a term of office from May 21, 2019 to June 30, 2020 on the Board of Education of the Gilbertsville-Mount Upton Central School District.
END OF FILE
 Covington and Underwood are named as respondents in this appeal. In a letter memorandum, petitioner’s counsel states that “Mr. Underwood and Mr. Covington were joined in this action as they will be affected by the decision.”
 According to the petition, petitioner approved this appointment on December 18, 2018; however, the board minutes included as an exhibit to the petition are dated December 12, 2018, and I take administrative notice of petitioner’s website, which identifies December 12, 2018 as the date of the board meeting.
 According to the petition, petitioner approved this appointment on February 1, 2019; however, the board minutes included as an exhibit to the petition are dated February 13, 2019, and I take administrative notice of petitioner’s website, which identifies February 13, 2019 as the date of the board meeting.
 The ballot also instructed voters that they could write-in the names of up to four candidates whose names did not appear on the ballot.
 According to the petition, December 4, 2019 was the date of the board meeting at which petitioner authorized its counsel to commence this appeal. Although petitioner included as an exhibit to the petition the meeting minutes of the board meeting dated December 14, 2019, at which it voted to commence the instant appeal, I note that the minutes are marked “draft” and erroneously stamped “12/12/18” at the top of each page. I take administrative notice of petitioner’s website, which identifies December 4, 2019 as the correct date of the board meeting.
 The quoted language from Education Law §1709(18) is made applicable to central school districts such as petitioner by Education Law §1804(1).
 2020 school board elections were originally scheduled to be held on May 19, 2020. However, in light of the COVID-19 pandemic, such elections have been postponed by Executive Order 202.13 until at least June 1, 2020. As of the date of this decision, a new date has yet to be established.