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Decision No. 18,230

Appeal and Application of NANCY PUSKULDJIAN from action of the Board of Education of the North Shore Union Free School District, Board President David Ludmar, Trustee Lisa Cashman, and District Clerk Betty Ciampi regarding a school district election.

Decision No. 18,230

(January 26, 2023)

Frazer Feldman, LLP, attorneys for respondents, Laura A. Ferrugiari, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the North Shore Union Free School District (“respondent”) regarding the district’s May 2022 school board election.  She also seeks the removal of board president David Ludmar, trustee Lisa Cashman, and district clerk Elizabeth (“Betty”) Ciampi in connection therewith (collectively, “respondents”).  The appeal must be dismissed and the application must be denied. 

Petitioner raises several claims in connection with respondent’s May 17, 2022 annual election and budget vote.  She primarily alleges that:  (1) trustees Ludmar and Cashman used unauthorized photographs of parents, students, and/or community members in a campaign video; (2) trustee Ludmar “knowingly put his [campaign] signs” next to those of then-candidate Sean Trager, whose signs improperly featured the district’s logo; and (3) the “[d]istrict willingly and purposely made it difficult for taxpayers to vote” by scheduling an event in which “every student” was “bussed … from every school in the district to the High School to be picked up during peak voting times.”  Petitioner requests the removal of trustees Ludmar and Cashman and “investigation[s]” into respondent’s election procedures; the “practices” of the district clerk; and potential “collu[sion]” between the superintendent and trustees Ludmar, Cashman, and Trager.

Respondents seek dismissal of the appeal for failure to state a claim upon which relief can be granted.  In addition to interposing a host of procedural defenses, respondents argue that petitioner’s allegations of wrongdoing are without merit.

I must first address three preliminary matters.  First, respondent submitted a motion to dismiss the appeal.  An appeal to the Commissioner is intended to serve as “an expeditious and simple method” by which the “many questions bound to arise in the administration of the school system” can be resolved (People ex rel. Board of Educ. of City of N.Y. v Finley, 211 NY 51, 57 [1914]).  As such, the Commissioner has previously declined to entertain judicial procedures such as motion practice in appeals pursuant to Education Law § 310 (see Appeal of Kjar, 60 Ed Dept Rep, Decision No. 17,870; Appeals of Alfano, et al., 39 id. 229, Decision No. 14,224).  Respondent has presented no compelling reason to depart from this reasoning, and I decline to do so.

Second, the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, 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.

Third, petitioner’s requests for investigations are outside the scope of an appeal to the Commissioner under Education § 310.  Such appeals are appellate in nature and do not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).

Turning to the merits, the Commissioner of Education may remove a school officer or member of a board of education from office when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule, or regulation of the Board of Regents or the Commissioner (Education Law § 306 [1]; see Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729).  To be considered willful, the action of a board member or school officer must have been intentional and committed with a wrongful purpose (see Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Nett and Raby, 45 id. 259, Decision No. 15,315).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner has not proven that respondents violated the Education Law, let alone that the named school officers possessed the requisite intent.  With respect to the campaign video, the record reflects that a filmmaker produced this video for the campaigns of trustees Ludmar, Cashman, and Trager, who ran as a slate.  All of the photographs featured therein were either:  (1) personally taken by Mr. Ludmar, Ms. Cashman, Ms. Trager, or the filmmaker; or (2) voluntarily contributed by private citizens in the North Shore community.  Moreover, upon receipt of complaints by parents that their children were portrayed in certain photographs, the campaigning trustees “produced a revised … video in which every single person visible in photographs had provided their consent” to appear in the video.  Petitioner has not explained how these actions violated any provision of the Education Law.

Additionally, there is no evidence that trustee Ludmar supported, or had prior knowledge of, candidate Trager’s improper use of the district’s logo on campaign signs.  Trustee Ludmar avers that he “had no role whatsoever in the design, production, or display” of candidate Trager’s signs; that, at the time candidate Trager produced the signs, he “had not yet formed a unified slate” with Ms. Cashman and Mr. Trager; and that he “never … instructed any individual to purposefully place … one of [his] signs next to one of Mr. Trager’s signs.”  Additionally, in a May 3, 2022 letter, respondent’s superintendent demanded that Mr. Trager cease use of the district’s logo in connection with his campaign.  These findings do not establish any wrongdoing by trustee Ludmar.

Similarly, petitioner has failed to establish that trustee Ludmar, trustee Cashman, or the district clerk “made it difficult for taxpayers to vote” by scheduling an event at the polling site.  Respondent’s district clerk indicates that the district has simultaneously hosted events on election day for “[n]early a decade.”  In 2022, the district hosted a kindergarten welcome session from 5:00 p.m. to 6:30 p.m. for students entering kindergarten the following fall.  The district clerk denies that any students were “bussed” to the high school in connection therewith.  Moreover, the kindergarten event occurred during a relatively short portion of the day, occupying 1.5 of the 15 hours that polls were open.  As such, petitioner has failed to prove any impropriety—let alone impropriety attributable to the individuals whose removal she seeks.

Finally, while petitioner complains about several aspects of the district’s May 2022 election, she seeks no relief in connection therewith.  As such, the appeal must be dismissed for failure to state a claim upon which relief may be granted (Appeal of Egan, 62 Ed Dept Rep, Decision No. 18,213; Appeal of Moss, 60 id., Decision No. 17,986; see also Appeal of C.P., 55 id., Decision No. 16,784; Appeal of Stepien, 48 id. 487, Decision No. 15,926).  I note, however, that petitioner failed to allege that any irregularities affected the outcome of the election or that the electoral process was so informal to the point of laxity.

In light of the foregoing, I need not address the parties’ remaining contentions, including respondent’s procedural defenses.