Appeal of CAROLYN EMOND from action of the Board of Education of the Central Square Central School District, Superintendent Joseph Menard and Chief Election Officer Maureen Ladd regarding a school district election and application for removal of Maureen Ladd from office.

Decision No. 16,755

(May 8, 2015)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Heather M. Cole, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner, an unsuccessful candidate for board member, appeals actions of the Board of Education of the Central Square Central School District (“board”), Superintendent Joseph Menard and Chief Election Officer Maureen Ladd in relation to the May 20, 2014 school district election.  She seeks the removal of Maureen Ladd (“Ladd”) (collectively “respondents”) as “Officer of the Central Square Central School District.”  The appeal must be dismissed and the application denied. 

Petitioner was a write-in candidate in the district’s May 20, 2014 school board election.  She lost the election by 95 votes to an incumbent board member.  Petitioner does not challenge the results of the election in this appeal.[1] Petitioner asserts that respondent Ladd engaged in improper electioneering at the May 20, 2014 election.  Specifically petitioner alleges that respondent Ladd engaged in improper electioneering by stating that votes cast for petitioner would not be counted because petitioner was an employee[2] of the school district.  Petitioner alleges that voters overheard this statement and/or read about it on social media and were discouraged from voting for her.  As relief, petitioner asks that Ladd be removed as “Officer of the Central Square School District.”

Respondents assert that Superintendent Joseph Menard (“Menard”) and the board are not necessary parties to the appeal, and that the petition contains no allegations of impropriety against them.  Respondents contend that petitioner has failed to state a claim upon which relief can be granted and that all actions by respondents in connection with the May 20, 2014 election were taken in good faith.  Respondents also argue that Ladd is not a school officer and, thus, may not be removed pursuant to Education Law §306.  Respondents contend, alternatively, that Ladd did not engage in electioneering and, thus, there is no basis for her removal.  Finally, respondents object to the scope of petitioner’s reply. 

I will first address the procedural issues.  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 the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). 

Initially, I note that petitioner characterizes this proceeding, in part, as an appeal from actions of the board and Menard, as superintendent.  However, although petitioner names both as respondents, the petition is devoid of any allegation against them. Therefore, the appeal is dismissed as against the board and Menard for failure to state a claim. 

The proceeding, essentially, is an application for removal of respondent Ladd as chief election officer and from her employment as school business official.  A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a wilful violation or neglect of duty under the Education Law or has wilfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729).  A school officer is defined in Education Law §2(13) as:

a clerk, collector, or treasurer of any school district; a trustee; a member of a board of education or other body in control of the schools by whatever name known in a union free school district, central school district, central high school district, or in a city school district; a superintendent of schools; a district superintendent; a supervisor of attendance or attendance officer; or other elective or appointive officer in a school district whose duties generally relate to the
administration of affairs connected with the public school system.

In her request for relief, petitioner seeks removal of respondent Ladd as an “Officer of the Central Square Central School District.”  However, the notice of petition states that the application is for her removal “from the office of Chief Elections [sic] Officer and Business Official of [the school district]”.  Respondent Ladd is employed as the district’s school business manager.  According to the record, a school business manager is a competitive civil service title with a job description established by the county personnel department.  Consequently, with respect to her role as school business manager, respondent Ladd is a school district employee.  School district employees are not subject to removal under Education Law §306.  (See. Application of V.M, 46 Ed Dept Rep 531, Decision No. 15,584; Appeal of Davis, 37 id. 19, Decision No. 13,793; Application of Eagelfeld, 36 id. 186, Decision No. 13,696; Application of Morris, 35 id. 193, Decision No. 13,512).  Therefore, to the extent that petitioner seeks removal of respondent Ladd as school business manager, the application is denied. 

Petitioner also seeks Ladd’s removal as “Chief Elections Officer” based on allegations that she engaged in electioneering at the May 20, 2014 election while acting in that capacity.  Respondents assert that the chief election officer is not a school district officer subject to removal under Education Law §306.  However, for the reasons set forth below, I need not resolve that issue. 

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  To the extent that petitioner seeks removal of respondent Ladd as chief election officer, the matter is moot.  Respondents explain that for each annual election, the board appoints an individual to serve as the chief election officer.  According to the record, respondent Ladd was appointed by the board to act as chief election officer for the May 20, 2014 election.  Since that election has been held, Ladd’s appointment as chief election officer therefor is concluded and any removal application is moot. 

In light of this disposition, I also need not determine whether respondent Ladd engaged in improper electioneering.  However, I urge respondents to ensure that all officers and staff assisting with district elections conduct themselves appropriately and with discretion so as to avoid contentiousness, as well as to deter challenges to such district elections.

THE APPEAL IS DIMISSED AND THE APPLICATION IS DENIED.

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