Appeal of ROCCO N. LANZILOTTA from action of the Board of Education of the Westbury Union Free School District and Constance R. Clark-Snead, Superintendent, regarding a special election.

Decision No. 16,013

(February 6, 2010)

Manners & Associates, P.C., attorneys for petitioner, Carlo M. Fusco, Esq., of counsel

Jaspan Schlesinger LLP, attorneys for respondents, Lawrence J. Tenenbaum, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Westbury Union Free School District (“board”) to place two board candidates on the ballot at a special meeting held on June 23, 2009.  The appeal must be dismissed.

Petitioner contends that board candidates Adelaide Brinson and Laura Pierce are ineligible for election to district office pursuant to Education Law §2103(2).Petitioner seeks an order removing Ms. Brinson and Ms. Pierce from the June 23, 2009 school board election ballot.  His request for interim relief was denied on June 22, 2009.

The appeal must be dismissed for failure to join necessary parties.  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Here, Ms. Brinson and Ms. Pierce were neither named as respondents nor personally served with a copy of the petition or notice of petition.  Accordingly, the appeal must be dismissed for failure to join them as necessary parties.

The appeal must also 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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Petitioner requested an interim order staying the election (which was denied) and an order removing Ms. Brinson and Ms. Pierce from the June 23, 2009 school board election ballot.  The appeal is moot because the election has been held and the requested relief cannot be granted.

While the appeal must be dismissed on procedural grounds I note that the provision of the Education Law relied on by petitioner is inapplicable to Ms. Brinson’s and Ms. Pierce’s circumstances.

THE APPEAL IS DISMISSED.

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