Appeal of ASHER MATATHIAS from action of the Board of Education of the Lawrence Union Free School District regarding an election.

Decision No. 17,997

(June 8, 2021)

Minerva & D’Agostino, P.C., attorneys for respondent, Christopher G. Kirby, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Lawrence Union Free School District (“respondent”) regarding, among other issues, an election.  The appeal must be dismissed.

Petitioner ran as a candidate for a board position in the school district’s June 16, 2020 election.  Respondent denied petitioner’s request to personally observe the canvassing of absentee ballots.  Subsequently, at a July 14, 2020 board meeting, respondent adjourned its meeting before petitioner was able to finish remarks that he intended to deliver.  This appeal ensued.

Petitioner principally contends that respondent prohibited him, his running mate, and/or the running mate’s chosen “surrogate” from observing the vote count of the absentee ballots in the school board election.  Petitioner also complains that the board’s “abrupt[] adjourn[ment]” of his remarks during the July 14, 2020 meeting violated his constitutional right to free speech.  Additionally, petitioner alleges that respondent has been “intentionally negligent” in failing to conclude negotiations regarding a labor contract with respondent’s faculty and staff.  Petitioner seeks orders compelling respondent to cease and desist “from employing bullying tactics to silence its critics”; a formal, public apology; “announce[ment]” of the district’s “tentative plans” for the 2020-21 school year; finalization of a collective bargaining agreement; and announcement of “an open-door policy” whereby respondent “welcom[es] extensive public comments” in connection with board meetings. 

Respondent argues that the appeal must be dismissed, in part, for lack of jurisdiction and as otherwise without merit.

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).

On this record, petitioner has failed to establish any grounds for relief.  First, petitioner has failed to establish that respondent wrongly prevented him from witnessing the canvassing of the absentee ballots.  It is well established that there is no requirement that absentee ballots be opened in the presence of candidates or their representatives (see Appeal of Jarmond and Johnson, 56 Ed Dept Rep, Decision No. 17,108; Appeal of Christner, 54 id., Decision No. 16,760; Appeal of Georges, 45 id. 453, Decision No. 15,380).  Nevertheless, the record reflects that respondent, in fact, offered petitioner the opportunity to appoint one poll watcher to observe the canvassing of absentee ballots.  Respondent’s district clerk explains in an affidavit that the district did so “given the unique circumstances of this election and in the interest of transparency.”  On the day of the election, petitioner appeared at respondent’s high school to personally serve as a poll watcher.  Respondent informed petitioner that candidates could not be present during the canvassing of ballots and asked him to leave.  Petitioner has not submitted a reply or otherwise addressed these assertions.  Thus, petitioner has failed to establish any basis for relief in connection with this claim.

The record further reflects that petitioner’s running-mate Amil Virani sought to appoint a poll watcher, and that respondent denied this request.  To the extent that petitioner seeks to assert the individual rights of Mr. Virani or his “surrogate,” he lacks standing to do so (see e.g. Appeal of Ghezzi, 55 Ed Dept Rep, Decision No. 16,890; Appeal of Walker, et. Al, 53 id., Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030).  In any event, respondent’s district clerk avers that Mr. Virani’s poll watcher “eventually produced identification which indicated he/she did not reside in the District” and “was subsequently escorted out of the building by law enforcement.”  As noted above, petitioner did not submit a reply to contest these allegations.

Petitioner has also failed to establish that respondent violated his right to free speech in connection with a board meeting.  Respondent’s district clerk explains that, “[t]o maintain public order” and “in the interest of expediency,” respondent “limits public comments to matters under consideration ... [and] limits the time for members of the public to speak.”  With specific respect to petitioner, the district clerk asserts that “he has been prohibited from publicly speaking at regular board meetings only to the extent that he has commented on matters outside the agenda, has gone beyond the time allotted for comment, or has made pejorative and/or repetitive comments.”

Courts have held that a school board meeting is a limited public forum for purposes of the First Amendment (Jones v. Bay Shore Union Free Sch. Dist., 947 F.Supp.2d 270, 278 [ED NY 2013] (“Typically, school board meetings are limited public fora”); see also Cyr v. Addison Rutland Supervisory Union, 60 F.Supp.3d 536, 547 [D Vt 2014]).  “Reasonable time, place and manner restrictions on speech in limited public fora comport with the Constitution ... [if] they are content-neutral, serve a significant government interest and leave open alternative channels for expression” (Devine v. Vill. of Port Jefferson, 849 F.Supp. 185, 190 [ED NY 1994]).  Petitioner offers no explanation as to how respondent’s policies, on their face or as applied, are inconsistent with these principles.  As such, this claim must be dismissed.

Petitioner’s claim that respondent was negligent in providing remote learning to “immigrant-refugees-asylum-seekers-underachievers” must also be dismissed.  In an affidavit, respondent’s superintendent avers that the district complied with all requirements regarding the submission and implementation of its reopening plan; this included holding public sessions with parents and teachers and posting the district’s reopening plan on its website in the dominant languages spoken by the school community.  The superintendent also indicates that the district provided students in kindergarten through fifth grade with laptop computers and “wi-fi hot spots during the course of the pandemic.”  Petitioner has provided no evidence to contradict these assertions.

Finally, petitioner’s claim that respondent has been “intentionally negligent” by failing to agree to a new collective bargaining agreement with district staff and faculty must be dismissed for lack of jurisdiction.  Respondent correctly states that the Civil Service Law vests exclusive jurisdiction over complaints involving collective bargaining in the Public Employment Relations Board (“PERB”) (Civil Service Law § 205 [5] [d]; see Matter of New York City Transit Authority v. New York State Public Employment Relations Board, et al., 19 NY3d 876).[1]

One final note is in order.  In the petition, petitioner alleges that respondent’s attorney informed him that he “had no such right” to make certain comments during a board meeting.  Respondent denies knowledge or information sufficient to form a belief as to this allegation in its answer.  This strains credulity, however, as the same attorney represents respondent in connection with this appeal.  Additionally, petitioner alleges that the attorney made the comment at a board meeting held shortly before the filing of the petition.  I admonish respondent to ensure that it provides complete and accurate responses in connection with appeals to the Commissioner.

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

THE APPEAL IS DISMISSED.

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