Appeal of WANDA BENTLEY, JASON BENTLEY, JOHN DOES 1-22 and JANE DOES 1-22, from action of the Board of Education of the RIPLEY CENTRAL SCHOOL DISTRICT, et al.,[i] regarding the conduct of a school district vote.

Decision No. 16,750

(April 24, 2015)

Hogan Willig, PLLC, attorneys for petitioners, Steven M. Cohen, Esq., of counsel

Hodgson Russ, LLP, attorneys for respondents Ripley Central School District, Chautauqua Lake Central School District, all named board members, officers and employees thereof, and David. P. O’Rourke, superintendent, David A. Farmelo, Esq., of counsel

Peter D. Clark, Esq., attorney for respondent Village of Mayville.

Damon Morey LLP, attorney for respondent Town of Ripley, Marylou K. Roshia, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners challenge the actions of the Board of Education of the Ripley Central School District (“Ripley”) and the Board of Education of the Chautauqa Lake Central School District (“Chautauqa Lake”), (collectively “respondents”), regarding a vote by the residents of Ripley to contract with another school district to educate Ripley’s seventh thorough twelfth grade students during the school year commencing July 1, 2013.  The appeal must be dismissed. 

Due to an alleged continual decline in district enrollment, on February 5, 2013, Ripley held a special district meeting at which district residents voted on a plan for Ripley to contract with another school district to educate Ripley’s seventh thorough twelfth grade students (also known as “tuitioning”).  The proposition passed by a vote of 282 to 262.  Thereafter, Ripley designated an adjoining district, respondent Chautauqua Lake, with which it entered into a contract for the tuitioning of Ripley students beginning with the 2013-2014 school year.  This appeal ensued. Petitioners’ request for interim relief was denied on July 22, 2013.

Petitioners allege several election irregularities and occurrences of improper activities with respect to voting, which they claim affected the results of the February 5, 2013 vote.  Petitioners also allege that respondents engaged in discriminatory and inequitable voting practices in violation of the Fourteenth, Fifteenth, Nineteenth and Twenty-Sixth Amendments to the United States Constitution. Specifically, petitioners allege, among other things, that respondents inappropriately imposed and unevenly applied voter requirements and procedures for establishing residency on district residents.  Petitioners further allege that respondents conducted a false canvass of the ballots, voided eligible votes with the intention of altering the outcome of the election and provided inaccurate information to the voters regarding the tax savings associated with tuitioning.  Petitioners request that I invalidate the results of the February 5, 2013 vote and order a new vote to be held on the issue of tuitioning.

Respondents generally deny petitioners’ assertions and contend that petitioners have failed to demonstrate a clear legal right to the relief requested and establish the facts upon which they seek relief.  Respondents also contend that the appeal cannot be maintained as a class action and is untimely.

I must first address the procedural issues. With regard to petitioners’ attempt to bring this appeal as a class action, an appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Petitioners’ pleadings are entirely devoid of any allegations addressing the criteria required for a class action and have not sufficiently set forth a basis that they represent individuals other than those identified in the caption of the petition.  Accordingly, to the extent petitioners seek class status, class status is denied. 

Respondents object to petitioners’ reply on the grounds that it lacks verification, is not responsive to respondents’ affirmative defenses and contains additional materials and arguments not contained in the petition. A reply shall be verified in the manner set forth for the verification of an answer (8 NYCRR §275.5).  Although the verification was initially not provided with the reply, a properly verified reply was promptly filed when petitioner was advised of the defect.  Respondent does not plead any prejudice resulting from this late submission, nor do I find any such prejudice.  I have previously accepted a pleading that was promptly resubmitted with a proper verification where there has been no evidence of prejudice to the opposing party (Appeal of V.B., 41 Ed Dept Rep 451, Decision No. 14,743; Appeal of P.R. and C.R., 41 id. 48, Decision No. 14,611; Appeal of Christe, 40 id. 412, Decision No. 14,514).  Accordingly, I will accept petitioners' reply.  

However, the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed petitioners’ submission, I have not considered those portions of the reply containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

As part of their petition, petitioners submitted twenty-one additional affidavits in which the names and signatures of the affiants appear to have been redacted.  Petitioners subsequently submitted to my Office of Counsel, on or about August 16, 2013, unredacted versions of those affidavits for my consideration and specifically requested that the unredacted versions not be released to respondents.  Respondents’ counsel objects to the submission of the unredacted affidavits on the grounds that such submission violates §276.5 of the Commissioner’s regulations and respondents were never served or in any manner provided with copies of the unredacted affidavits and would therefore be prejudiced by my consideration thereof.  Pursuant to §276.5(a), of the Commissioner may permit “the service and filing” of additional affidavits and exhibits, but only with the prior permission of the Commissioner (8 NYCRR §276.5).  Petitioners’ unredacted affidavits were not submitted in accordance with §276.5 of the Commissioner’s regulations nor were they properly served upon respondents; therefore, I will not consider them as part of the record in this appeal.

The appeal must be dismissed as untimely.  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).  The vote was held on February 5, 2013 and the appeal was commenced by serving the named respondents between July 5 and July 11, 2013, more than five months after the district vote petitioners seek to invalidate.  As their excuse for the delay, petitioners assert that the alleged parties aggrieved by the election results, namely Jane Does 1-22 and John Does 1-22, “did not come forth as aggrieved by the election results until June 5, 2013” and until such parties came forward, petitioners did not have enough persons to invalidate and overturn such results.

On this record, petitioners have not established good cause for delay. The fact that petitioners were not able to gather sufficient evidence to warrant the filing of the appeal does not toll the statute of limitations.  Indeed, the fact that the affidavits were notarized between April 25, 2013 and May 13, 2013 belies petitioners’ assertion that they were unable to obtain such information until June 5, and does not serve to explain why petitioners failed to commence this appeal until July 5, 2013.  On this record, therefore, I find that petitioners’ proffered excuse is not supported by the record, and that petitioners have not established good cause to excuse their lateness in filing this appeal (Appeals of Bayer, 35 Ed Dept Rep 333, Decision No. 13,561; Appeal of Bosco, et al., 32 id. 554, Decision No. 12,912; Appeal of Ruffino and Wilber, 31 id. 183, Decision No. 12,613).  Therefore, the appeal must be dismissed as untimely.

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

THE APPEAL IS DISMISSED.

END OF FILE