Appeal of ELLEN REESE, MICHAEL T. QUIGLEY, GREGORY B. OLMA, GEOFFREY H. KELLY and RICHARD H. GREENBERG from action of the Board of Education of the City School District of the City of Buffalo, Superintendent James A. Williams and District Clerk James M. Kane; Members at Large of the Board of Education Christopher L. Jacobs, Catherine Collins and Florence D. Johnson; Member at Large Elect John B. Licata; the Buffalo Niagara Partnership; and Buffalo Students First regarding an election.

Decision No. 16,044

(March 31, 2010)

Peter A. Reese, Esq., attorney for petitioners

Alexander Collichio, Esq., attorney for respondents Board of Education, Superintendent James A. Williams, District Clerk James M. Kane (collectively “district respondents”), and Christopher L. Jacobs, Catherine Collins and Florence D. Johnson

Magavern Magavern Grimm LLP, attorneys for respondents Buffalo Niagara Partnership and Buffalo Students First, Edward P. Perlman, Esq., of counsel

STEINER, Commissioner.--Petitioners seek to invalidate the results of the May 5, 2009 election of at-large members to the Board of Education of the City School District of the City of Buffalo (“board”).  They also seek to remove the superintendent and district clerk, and respondents Christopher L. Jacobs (“Jacobs”), Catherine Collins (“Collins”) and Florence D. Johnson (“Johnson”) as members of the board.  The appeal must be dismissed and the application for removal denied.

On May 5, 2009, the individually named respondents ran for election as at-large members of the board.  John B. Licata (“Licata”) along with incumbents Jacobs and Johnson were elected.  Incumbent Collins was unsuccessful.

Education Law §1528 requires candidates for election to a board of education to file with the school district clerk (“clerk”) sworn statements of expenditures and contributions made to aid in his or her nomination or election or to influence the nomination or defeat of any candidate.  Education Law §1529(1) specifies that three such statements shall be filed: thirty days before the election; five days before the election; and within twenty days following the election.  Education Law §1529(4) specifies that the statements will be part of the public record and open for public inspection.  Jacobs, Collins and Johnson filed campaign finance statements on April 6 and 30, 2009.

By email dated April 20, 2009, petitioner Quigley, a journalist and associate editor of a Buffalo newspaper, requested a copy of or access to “any and all campaign financial reports filed in regard to 2009 Buffalo School Board Elections.”  By letter dated April 22, 2009, the district’s records access officer informed petitioner Kelly, the newspaper’s editor, that she had requested the materials on file, which she deemed the “first statements” under Education Law §1529(1), for evaluation “for release, redaction or exception under the provisions of the Freedom of Information Law” [FOIL], and that the statements would be available no later than April 30, 2009.  She also suggested that petitioner Kelly might wish to make an appointment to review the available statements while the newspaper’s FOIL request was pending.  The records access officer also noted that Education Law §1529(4) did not provide for copying records.

On April 23, 2009, petitioner Quigley reviewed the records.[1]  By letter to the superintendent and clerk the next day, petitioners Quigley and Kelly again requested to inspect and copy the campaign finance records by April 27, 2009, and questioned the district’s authority “to review, redact, amend or otherwise modify such public records.”  By letter dated April 29, 2009, having reviewed the records in question, the district’s chief legal officer remitted 24 pages of documents to petitioners Quigley and Kelly pursuant to Quigley’s original April 20, 2009 FOIL request.  The chief legal officer also sent a second letter that day responding to Quigley’s April 24, 2009 letter.

On April 29, 2009, petitioners commenced an action in New York Supreme Court, Erie County, pursuant to CPLR Article 78, alleging that the superintendent and clerk violated the Public Officers Law (“POL”) and the Education Law, and that the incumbents also violated the Education Law.  Petitioners sought, among other things, to require the superintendent and clerk to provide public inspection and timely copies of all requested campaign financial reports.[2]  Petitioners also sought to require the incumbent candidates to provide statements of their expenditures and contributions and whether they had approved campaign assistance from respondents Buffalo Niagara Partnership (“Partnership”) and Buffalo Students First (“Students First”), and to enjoin the latter respondents from providing further campaign support.  By Decision and Order dated May 7, 2009, the court dismissed the petition in its entirety.[3]  This appeal ensued.

Petitioners contend that by strictly interpreting the Education Law and POL, the district respondents obfuscated the intent of those laws to the benefit of the incumbents and influenced the election by deliberately delaying the release of the April 6 and April 30 campaign statements until after the election.  Petitioners further contend that the Partnership is directly associated with Students First and that both organizations violated the spending threshold permitted by Education Law §1528(1)(c), improperly contributed to the campaigns of the incumbents, and, by their campaign literature supporting the incumbents, influenced absentee ballots and hence the outcome of the election.  Petitioners also allege that the incumbents were aware of those contributions and support and failed to report them.  Petitioners seek to invalidate the results of the election, request a new election, and seek the removal of the superintendent, the clerk, and Jacobs, Collins and Johnson from their respective positions.

The district respondents contend that the appeal is barred by the doctrines of election of remedies and resjudicata.  They also contend that petitioners lack standing, the petition fails to state a claim upon which relief may be granted, fails to set forth a clear and concise statement of their claim, and fails to set forth sufficient allegations for the removal of the individual respondents.  They assert that the appeal is untimely and moot regarding the FOIL requests.

I must first address several procedural issues.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of Johnson, 45 id. 469, Decision No. 15,384).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Raines, 45 Ed Dept Rep 21, Decision No. 15,246; Appeal of Bonham, 44 id. 179, Decision No. 15,140).  The petition was served upon respondents Partnership and Students First on June 2, 2009, making their answer due by June 22, 2009.  These respondents, however, did not serve an answer until June 23, 2009, one day late, and offered no excuse for the delay.  Accordingly, I have not considered it.

Petitioners’ request to remove Collins from the board must be dismissed as moot because she is no longer serving on the board.  Petitioners’ request to remove the superintendent, clerk, Jacobs and Johnson must be dismissed because the notice of petition is defective.  Section 277.1(b) of the Commissioner’s regulations requires that the notice accompanying a removal application specifically advise a school officer that the application is being made for his or her removal from office (8 NYCRR §277.1).  In this case, petitioners failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondents (Appeal of Hertel, 49 Ed Dept Rep ___, Decision No. 16,021; Appeal of Rosten, 49 id. ___, Decision No. 16,014; Application of Barton, 48 id. 189, Decision No. 15,832).  The district respondents assert that petitioners lack standing to maintain this appeal because they have not suffered any personal damage or injury to their civil persona or property rights.  Petitioners, however, assert that they are qualified voters, residents and taxpayers.  A person’s status as a district resident is sufficient to maintain an appeal with respect to the conduct of an election (Appeal of Gilmore and Jordon-Thompson, 42 Ed Dept Rep 334, Decision No. 14,874; Appeal of Coleman, et al., 42 id. 256, Decision No. 14,845; Appeals of Schadtle and Wilcox, 38 id. 599, Decision No. 14,102).

To the extent the appeal concerns the superintendent’s and clerk’s compliance with FOIL, and the individual respondents’ compliance with the financial disclosure requirements of Education Law §1528, my review of the pleadings submitted by petitioners to the Supreme Court on April 29, 2009 reveals that the judicial proceeding involved the same set of facts, raised the same issues and sought identical relief as in this appeal.  It is well-settled that the prior commencement of an action or proceeding in another forum for the same relief constitutes an election of remedies which precludes an appeal to the Commissioner of Education (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Qureshi, 43 id. 504, Decision No. 15,066; Appeal of Smolen, 43 id. 296, Decision No. 15,000).

The doctrine of resjudicata also compels dismissal of those portions of the appeal because where, as here, a court of competent jurisdiction has already denied claims identical to those raised before the Commissioner, an appeal pursuant to Education Law §310 does not lie (Appeal of Smolen, 43 Ed Dept Rep 296, Decision No. 15,000; Appeal of Phillips, 38 id. 165, Decision No. 14,008).  Moreover, the doctrine of resjudicata applies not only to those claims actually litigated, but also to those claims that could also have been raised in the earlier litigation (O’Brien, et al. v. City of Syracuse, et al., 54 NY2d 353; Smith v. Russell Sage College, 54 NY2d 185; Thomas v. City of New York, et al, 239 AD2d 180).

On May 7, 2009, the Supreme Court dismissed petitioners’ petition in all respects.  The court found, among other things, that it was undisputed that access to the records had been provided by the district, that copies of the records were furnished to petitioner Quigley within the time frame provided by FOIL, that petitioners had failed to exhaust their administrative remedies regarding alleged FOIL violations, that no law required the clerk to immediately copy the documents, that the financial statements filed by Jacobs, Johnson and Collins substantially complied with the Education Law and there was no evidence that they had approved expenditures on their behalf.

Furthermore, all claims regarding FOIL are moot because petitioner Quigley viewed the documents on two occasions, April 23 and May 1, 2009, and was sent copies of them on April 29, 2009.  Moreover, section 89 of the POL vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Appeal of Berman, 46 id. 64, Decision No. 15,442; Appeal of Hubbard, 45 id. 451, Decision No. 15,379).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

In addition, Education Law §1530 vests exclusive jurisdiction over complaints regarding the candidates’ statements of expenditures in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Donnelly, 33 Ed Dept Rep 362, Decision No. 13,079).  Therefore, I have no jurisdiction to address those allegations raised in this appeal.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED AND THE APPLICATION FOR REMOVAL IS DENIED.

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