Appeal of STEPHANIE KUSHNER from action of the Board of Education of the East Williston Union Free School District regarding a school district election.

 

 

(March 30, 2004)

 

Guercio & Guercio, attorneys for respondent, Gary Steffanetta, Esq., of counsel 

MILLS, Commissioner.--Petitioner appeals the decision by the Board of Education of the East Williston Union Free School District ("respondent") to reject her challenge to the eligibility of another board candidate.  The appeal must be dismissed.

By letter dated May 12, 2003, petitioner, who was a candidate for election to respondent"s board, challenged its acceptance of the nominating petition of another candidate.  Petitioner contended that the other candidate, who was the Commissioner of Building Development and Commissioner of Planning for the Town of North Hempstead, was ineligible for school board membership because respondent"s policy did not permit a board member to simultaneously hold another "city office."  By letter dated May 21, 2003, respondent advised petitioner that it had rejected her challenge.  This appeal ensued.  Petitioner"s request for interim relief was denied on June 30, 2003.

Petitioner asserts that her opponent was ineligible for service.  She seeks to prevent his installation and asks that she be declared the winner of the election.

Respondent contends that the appeal is moot, that petitioner fails to join necessary parties, and that no statute or board policy prohibits the successful candidate"s board membership.

Petitioner sets forth additional allegations in a reply affidavit.  The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to add belated assertions that should have been in the petition (Appeal of Russo, 41 Ed Dept Rep 182, Decision No. 14,657; Appeal of Krantz, 38 id. 485, Decision No. 14,077).  Therefore, while I have reviewed petitioner"s reply, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

To the extent petitioner seeks to prevent her opponent"s installation at respondent"s July 1, 2003 meeting, the appeal is moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Reynolds, 42 Ed Dept Rep ___, Decision No. 14,834; Appeal of N.S., 42 id. __, Decision No. 14,817; Appeal of R.R. and K.R., 41 id. 405, Decision No. 14,726).  Because her opponent has already been installed as a member of respondent"s board, this claim must be dismissed as moot.

To the extent petitioner seeks a declaration that she won the election because there was no other qualified candidate, the appeal must be dismissed on the merits.  Petitioner has the burden of establishing all the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of O"Brien, et al., 42 Ed Dept Rep ___, Decision No. 14,868; Appeal of Grant, 42 id. ___, Decision No. 14,816; Appeal of Finkel, 41 id. 74, Decision No. 14,619).  Petitioner asserts that her opponent was ineligible to serve as a board member because respondent"s policy does not permit a school board member to hold a "city office."  Petitioner submits evidence that the challenged board member holds the position of Commissioner of Building Development and Commissioner of Planning for the Town of North Hempstead.  However, North Hempstead is not a city.  Therefore, petitioner has failed to establish that the successful candidate holds a "city office" and has failed to meet her burden of establishing the facts upon which she seeks relief.

Although Education Law ""2102 and 2103 govern eligibility for board membership in a union free school district, respondent admits that its policy contains inapplicable language drawn from Education Law "2502 which governs board membership in city school districts.  Accordingly, respondent should review this policy.

In light of the above disposition, I need not address the parties" remaining contentions.  

THE APPEAL IS DISMISSED.

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