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Decision No. 18,251

Appeal of MAGDALENA PERLMAN, ERIN O’GRADY, GNESIA M. FELIU, and ELIZABETH A. DEE from action of the Board of Education of the Lakeland Central School District regarding a school district election.

Decision No. 18,251

(March 13, 2023)

Shaw, Perelson, May and Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal from action of the Board of Education of the Lakeland Central School District (“respondent”) regarding the district’s May 2022 annual budget vote and election.  The appeal must be dismissed.

In April 2022, respondent accepted Michael Marchese’s petition to run as a candidate in the May 17, 2022 election.  Petitioners thereafter complained to respondent that Mr. Marchese was ineligible to run as a candidate for a board position because his cousin served on the board.  On April 20, 2022, respondent’s district clerk opined that Mr. Marchese was qualified to serve as a candidate because he “me[t] the qualifications for [a] member of the board of education and ... reside[d] in a separate household from [his cousin], each with their own family, within the Lakeland Central School District.”  This appeal ensued.  Petitioners’ request for interim relief was denied on May 2, 2022.

Petitioners contend that Mr. Marchese is ineligible to serve as a trustee because his cousin, Anna Massaro, serves as a trustee on the board.  Petitioners request “reversal” of respondent’s determination that Mr. Marchese was a qualified candidate for office.

Respondent argues, among other contentions, that Mr. Marchese was a qualified candidate for office because he and Ms. Massaro are not “family” within the meaning of Education Law § 2103 (3).

Education Law § 2103 (3) states: “[n]ot more than one member of a family shall be a member of the same board of education in any school district.”  The Attorney General has held that the word “family” in this provision refers to those who reside within the same household; thus, siblings or cousins who live in separate residences may simultaneously serve as members of the same school board (Opn. Atty. Gen., 48 State Dept. 132; Opn. Atty. Gen., 48 State Dept. 779;[1] see also Rosenstock v Scaringe, 54 AD2d 779 [3d Dept 1976], affd 40 NY2d 563 [1976]).

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).

Petitioners have submitted no evidence that Michael Marchese and Anna Massaro live in the same household.  Rather, petitioners argue that public policy would be better served by adopting a more expansive definition of “family” than that articulated by the Attorney General.  I decline to do so.  The relevant text of Education Law § 2103 (3) has not changed since the issuance of the Attorney General’s interpretations thereof.  As such, I defer to the Attorney General’s reasonable construction of this statute.

I am further unpersuaded by petitioners’ contention that I should adopt the broader definition of “family” provided in Election Law §§ 5-508 and 11-306.  These laws concern election protections for victims of domestic violence who have received “threat[s] of physical or emotional harm to themsel[ves] or to family or household members” (Election Law § 5-508; Election Law § 11-306).   There is a more compelling reason to offer a broader definition of “family” in the context of threats of domestic violence than with respect to eligibility as a school board candidate.  Moreover, the fact that a broader definition of “family” exists elsewhere in New York law demonstrates that the Legislature has provided such definition when desired.[2]

Finally, petitioners argue that the following dicta from the Court of Appeals’ decision in Rosenstock v Scaringe supports their argument:

[W]e would note that the word “family” as used in [Education Law § 2103] might well be ambiguous as applied in another context, but here, where the appellant is the wife and lives in the same household with the present school board member, she would clearly come within the class contemplated by the statute.

(40 NY2d 563, 564 [1976]).  The Court of Appeals, however, merely acknowledged that ambiguity may exist in a future case involving Education Law § 2103.  Petitioner has failed to prove that any such ambiguity exists here.  Thus, I am unpersuaded that this dicta supports divergence from the Attorney General’s interpretation of the term “family.”

To the extent they are not specifically addressed herein, petitioners’ remaining contentions are without merit.




[1] Citations are to Volume 48 of the State Department Reports, volumes that contain decisions, opinions, and rulings of State officers, Departments, Boards, and Commissions from 1914-1958—including the judicial decisions of the Commissioner of Education.


[2] I further reject petitioners’ reliance on a decision of the Oklahoma Supreme Court that held that a board member was unqualified by nature of his spouse’s employment with a school district (Sharp v. Tulsa Cnty. Election Bd., 890 P2d 836 [Sup Ct OK 1994], as supplemented on reh [Jan. 31, 1995]).  That court based its decision on the language of an Oklahoma statute, which provided, in relevant part, that “no person shall be eligible to be a candidate for or serve on a board of education if the person ... is related within the second degree by affinity or consanguinity to any other member of the board of education or to any employee of the school district ...” (70 Okla. Stat. Ann. § 5-113).  Education Law § 2103 (3) contains no comparable language.