Appeal of JENNIFER GEIGER from action of the Board of Education of the City School District of the City of Rome and Christine Esposito, District Clerk, relating to a refusal to accept a nominating petition.

Decision No. 16,379

(July 20, 2012)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Christopher M. Militello, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals from the refusal of the Board of Education of the Rome City School District of the City of Rome (“respondent board”) and Christine Esposito, district clerk, (collectively “respondents”) to accept petitions seeking to have petitioner’s name appear on the ballot as a candidate for election to respondent board.  The appeal must be dismissed.

Respondent board conducted its annual election to fill vacancies on May 15, 2012.  The Legislature has required, pursuant to Education Law §2608(1), that candidates for office of member of the board of education must file a nominating petition “in the office of the clerk of the board of education between the hours of nine a.m. and five p.m., on or before the twentieth day preceding the day of the annual election.”   Education Law 2608(1) also provides that “[t]he clerk shall refuse to accept petitions ... which are not timely.”

In accordance with the statute, nominating petitions for election to the board of education should have been filed by five p.m. on April 25, 2012.  Respondents admit that candidates were incorrectly informed, both through publications and orally, that nominating petitions were due by four p.m. on April 27, 2012. 

According to the record, petitioner submitted her petition after five p.m. April 25, 2012, but prior to the district’s published deadline of four p.m. on April 27, 2012.  The district clerk rejected her nominating petition as untimely because it was not filed by the statutory deadline of five p.m. on April 25, 2012.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 10, 2012.

Petitioner contends that she relied on the deadline of April 27, 2012 stated in the district’s publications and orally, and therefore, the districts clerk’s rejection of her petition was arbitrary and capricious.  Petitioner also asserts that the district’s error violates her constitutional rights.

Because Education Law §2608(1) requires that nominating petitions be filed in the office of the district clerk on or before the twentieth day preceding the day of the annual election, petitions may not be filed after the statutory deadline.  Respondent board’s incorrect statement of the filing deadline does not authorize school district officials to depart from the statutory filing requirements (seeAppeal of Crespo, 23 Ed Dept Rep 446, Decision No. 11,276).

With respect to petitioner’s constitutional claim, an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).

THE APPEAL IS DISMISSED.

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