Appeal of MARIA CARABALLO from action of the Board of Education of the City School District of the City of Mount Vernon regarding a school district election.

Decision No. 16,477

(April 29, 2013)

Joseph G. Goubeaud, Jr., Esq., attorney for petitioner Ingerman Smith, L.L.P., attorneys for respondent, Neil M. Block, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges action by the Board of Education of the City School District of the City of Mount Vernon (“respondent”) regarding the May15, 2012 election of board members and seeks to overturn the results of the election. The appeal must be dismissed.

In Spring 2012, Brenda Crump, Kathie Brewington, Elias Gootzeit and Frances Wynn submitted nominating petitions to run for election to respondent board at the May 15, 2012annual district meeting. On April 25, 2012, petitioner submitted a request, pursuant to the Freedom of Information Law (“FOIL”), for copies of all four candidates’ nominating petitions. On May 1, 2012, petitioner obtained copies of the petitions pursuant to her FOIL request.

On May 2, 2012, petitioner objected to the validity of each of the petitions. On May 8, 2012, in response to petitioner’s objections, respondent’s staff reviewed the nominating petitions. By letter dated May 14, 2012, the district clerk notified petitioner that the nominating petitions met the requirements set forth in Education Law§2608 (i.e., the petitions included the name and residence of the candidate and the signatures of at least 100 qualified voters). This appeal ensued.

Petitioner asserts that she did not receive the May14, 2012 determination regarding her challenges to the nominating petitions until May 16, 2012. She claims her right to effectively challenge the petitions was compromised by the receipt of the district clerk’s May 14,2012 determination one day after the election. She requests that the election results be set-aside and a new election be held.

Respondent contends that the appeal is untimely and, with respect to Kathie Brewington, moot. Respondent also asserts that the petition must be dismissed for failure to join the successful candidates who were elected to the board. Respondent claims that I lack jurisdiction to the extent petitioner alleges that respondent violated FOIL. On the merits, respondent contends that all four challenged nominating petitions were properly filed and valid, in accordance with the requirements set forth in Education Law§2608.

I will first address several procedural matters. 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). Petitioner challenges her receipt of the district clerk’s determination on May 16, 2012, one day after the election on May 15, 2012. This appeal was commenced by service of a petition upon respondent on June 7, 2012, within the 30-dayperiod. The petition and affidavit of service were filed with my Office of Counsel on July 5, 2012. By letter dated July 9, 2012, my Office of Counsel returned the petition, indicating that it was not verified in accordance with§§275.5 and 275.6 of the Commissioner’s regulations. Petitioner was informed that, if a corrected petition was served and filed within two weeks of the date of the letter, the appeal would be deemed to have been initiated on June 7, 2012. Petitioner re-served a verified petition upon respondent on July 20, 2012 and filed it with my Office of Counsel on July 23, 2012 – within the required two week period. Therefore, I decline to dismiss the appeal as untimely.  [1]

Nonetheless, 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 Murray, 48 Ed Dept Rep 517, Decision No.15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917;Appeal of Williams, 48 id. 343, Decision No. 15,879).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 Murray, 48 Ed Dept Rep 517, Decision No.15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917;Appeal of Williams, 48 id. 343, Decision No. 15,879).

As relief, petitioner asks that I overturn the results of the May 15, 2012 election and order a new election. However, petitioner failed to join any of the successful candidates as respondents in the appeal. If the election results were set-aside, such individuals would be adversely affected. Therefore, they are necessary parties and petitioner’s failure to join them as respondents warrants dismissal of the appeal (Appeal of Greene and Moss, 50 Ed Dept Rep, Decision No. 16,210).

Finally, to the extent that petitioner raises claims pursuant to FOIL, §89 of the Public Officers Law 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 (Appeal of Olka, 48 Ed Dept Rep10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679). Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

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

THE APPEAL IS DISMISSED.

END OF FILE

 

 

[1]    Respondent also contends that, because the initial petition was not filed with my Office of Counsel within five days after service, as required by §275.9(a) of the Commissioner’s regulations, and a corrected petition was not filed until July 23, 2012, the appeal is untimely. However, as discussed above, the petition was initially served within the required 30 days, and a corrected petition was served within the two weeks afforded petitioner. Since respondent does not claim any prejudice from petitioner’s delay in filing, I find such delay harmless error in this case (see Appeal of McSweeney, 42 Ed Dept Rep 59, Decision No. 14,775).