Appeal of RICHARD JOHNSON, JOSEPH MIDDLETON, YVETTE CAMACHO, BARBARA GOLDSTEIN and RENEE IRIZARRY from actions of Daniel Devine and John Smith regarding election expenditures.

Decision No. 15,334

(December 21, 2005)

Noel C. Bonilla, attorney for petitioners

Lamb & Barnosky, LLP, attorneys for respondents, Sharon N. Berlin, Esq., of counsel

MILLS, Commissioner.--Petitioners seek to disqualify Daniel Devine and John Smith (“respondents”) from membership on the Board of Education of the Central Islip Union Free School District (“board”) for allegedly filing false election expenditure statements.  The appeal must be dismissed.

At the time of the commencement of this appeal, petitioners Camacho, Goldstein and Irizarry were members of the board.  Petitioners Johnson and Middleton were board members until they were defeated by respondents in the May 18, 2004 election.

Petitioners allege that respondents filed false and fraudulent election expenditure statements (“statements”) pursuant to Education Law §1528.[1]  They base this allegation on their estimates that the Central Islip Teachers Association (“CITA”) and the Civil Service Employees Association (“CSEA”) provided mailings, radio advertisements and lawn posters to each respondent costing approximately $50,000.  Petitioners allege that, since respondents’ statements do not reflect any CITA or CSEA contributions, they are therefore false and fraudulent.  They request that I order respondents to re-file their election expenditure statements.  Petitioners also ask that I disqualify respondents and prohibit them from assuming membership on the board.  Petitioners’ request for interim relief, to prohibit respondents from taking office on July 1, 2004, was denied on June 30, 2004.

Respondents claim that their statements are accurate.  They contend that they did not approve or grant permission to anyone to produce mailings or literature on their behalf.  Both respondents allege surprise at the numerous publications produced by CETI and CSEA, maintaining that they first saw some of the publications in the context of this appeal.  Respondents also contend that the petition should be dismissed for failure to join the district as a necessary party and because it was not timely filed.  Finally, respondents ask that I certify their claim for reimbursement by the district for legal expenses incurred as a result of this appeal.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The election in question was held on May 18, 2004.  However, the law requires a final statement to be filed 20 days after the election (Education Law §1529).  Respondents filed their statements on June 7 and 8, 2004, and petitioners commenced this appeal on June 28, 2004, within 30-days from the filings.  Therefore, I find that the appeal is timely.

Respondents also allege that the district is a necessary party to this appeal.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of R.M. and L.M., 44 id. 218, Decision No. 15,154; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  However, this appeal only involves respondents and their alleged failure to file proper statements.  Thus, the district is not a necessary party.

The portion of the appeal requesting that respondents be prohibited from assuming membership on the board must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).  This is especially true when a petitioner has sought interim relief as to all or most of his claim and that relief has been denied (Appeal of Martin, 41 Ed Dept Rep 35, Decision No. 14,605).  Petitioners’ request for interim relief, to enjoin respondents from assuming membership on the board, was denied on June 30, 2004.  Subsequently, respondents assumed their places on the board, and therefore it is no longer possible to grant the specific relief requested by petitioners.

     Petitioners also request that respondents be made to re-file their statements.  First, petitioner supplies no evidence that any violation of Education Law §1528 occurred.  Specifically, the record does not reflect that respondents failed to disclose any expenditures made on their behalf about which they had knowledge.  Additionally, a candidate's incomplete statement of election expenditures is, in and of itself, an insufficient basis for setting aside election results (Appeal of Donnelly, 33 Ed Dept Rep 362, Decision No. 13,079; Appeal of Guttman, 32 id. 228, Decision No. 12,815; Matter of Pendergast, 20 id. 127, Decision No. 10,343).  Even if there had been a violation of §1528, a proceeding to compel the filing of corrected statements must be venued in the Supreme Court of the State of New York and, therefore, is outside the jurisdiction of the Commissioner of Education (Education Law §1530).

Finally, respondents request that I issue certificates of good faith pursuant to Education Law §3811(1).  Where granted, such certification is solely for the purpose of authorizing the board to indemnify respondents for the legal fees and expenses associated with this proceeding.  It is appropriate to issue such certification unless it has been established on the record that the requesting board member or trustee acted in bad faith (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Applications of Zimmerman, et al., 42 id. 205, Decision No. 14,823).  As indicated above, I find that the record fails to establish that respondents acted in bad faith.  Accordingly, I will issue certifications for the limited purpose of Education Law §3811(1) (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050).

THE APPEAL IS DISMISSED.

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