Appeal of THERESA BUDICH and JOHN MACDONALD from actions of Edward Mehrhof, as superintendent of the Monroe-Woodbury Central School District, Dr. Michael J. DiGeronimo, as president of the Monroe-Woodbury Central School District Board of Education and Jennifer Trumper, Natalie Brooks and Eleni Carter, as members of the board of education regarding an election, and application for the removal of board member Jennifer Trumper and board president Dr. Michael J. DiGeronimo.

Decision No. 16,774

(June 17, 2015)

Thomas, Drohan, Waxman, Petigrow and Mayle, L.L.P., attorneys for respondents Mehrhof, DiGeronimo and Trumper, Daniel Petigrow, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners appeal actions of certain members of the Board of Education of the Monroe-Woodbury Central School District (“board of education” or “board”) and school district employees regarding the conduct of the district’s May 15, 2012 school board election and seek to overturn the results of such election.

Petitioners also seek the removal of Jennifer Trumper (“respondent Trumper”) and Dr. Michael J. DiGeronimo (“respondent DiGeronimo”) as members of the board, as well as the suspension of Edward Mehrhof (“respondent Mehrhof”) as superintendent.  Additionally, petitioners seek an investigation into certain actions of respondent Mehrhof and possible discipline.  The appeal must be dismissed and the application denied.

On May 15, 2012, the district held its annual election in which six candidates ran to fill three board vacancies.  John Otero, Natalie Brooks and Eleni Carter were elected to fill the three seats on the school board.

According to the record, on or about May 2, 2012, respondent Trumper sent an email to a number of individuals, including to the personal email account of a district employee, raising concerns regarding certain candidates’ motivation for seeking seats on the school board and alleging that these candidates were aligned with a Hasidic community and its interests.  Subsequently, on May 8, respondent Trumper sent a second email, along with copies of pages from one candidate’s nominating petition, asserting that the petition was signed largely by members of the Hasidic community.

On or about May 14, 2012, respondent Mehrhof forwarded to a number of district employees an email he had received that was signed “Citizens to Protect Monroe-Woodbury Public Education from Special Interest Groups,” as well as an attached flyer bearing the district’s logo, and asked whether anyone knew the source of the email or flyer. 

On or about May 14, 2012, respondents Brooks and Carter issued a “robocall” to district voters seeking support for themselves and John Otero in the upcoming election. 

The results of the election were as follows, with the top three candidates – Otero, Brooks and Carter – winning seats on the board:

John Otero - 3,082 votes

Natalie Brooks – 2,969 votes

Eleni Carter – 2,873 votes

Mark O’Brien – 1,362 votes

Clara Munoz-Feliciano – 1,163 votes

Guilaine Leger-Vargas - 963 votes

This appeal ensued.

Petitioners, residents and then members of the board of education, allege that respondents engaged in impermissible partisan conduct prior to the May 15, 2012 election that improperly interfered with the election.  Specifically, petitioners allege that respondents Brooks and Carter used school district resources to solicit votes for themselves and John Otero through the district’s parent notification system. Petitioners further allege that respondent Mehrhof permitted use of the system and that respondent DiGeronimo “should have also known” about it.  Petitioners also contend that respondents Mehrhof and DiGeronimo publicly endorsed respondents Brooks, Carter and John Otero by allowing members of the public to voice support for the above-noted candidates at the district’s budget hearing.

Petitioners also allege that the emails sent by respondent Trumper and received by certain district staff was an attempt to improperly influence the outcome of the election.  They also claim that she obtained copies of a candidate’s nominating petition without making a request under the Freedom of Information Law (“FOIL”).  Petitioners further assert that, by forwarding the May 14, 2012 email and flyer, respondent Mehrhof improperly used school district resources to influence the outcome of the election.  Petitioners seek nullification of the election; removal of DiGeronimo and Trumper from the board; and suspension, investigation - and possible termination – of respondent Mehrhof.

Respondents[1] deny any use of district resources, including its parent notification system, by or on behalf of respondents Carter and Brooks.  Respondents contend that, to the extent that respondent Mehrhof shared any email and the flyer, such action was solely and properly for investigative purposes. Additionally, respondents deny that allowing members of the public to speak at a public forum constitutes impermissible public endorsement of any candidates on their part; moreover, that refusing to allow such public speech would be a violation of such individuals’ right to free speech.  Respondents further contend that petitioners failed to demonstrate that any irregularities occurred or affected the outcome of the election.

Respondents assert a number of procedural defenses.  Respondents claim that the appeal should be dismissed for failure to personally serve each respondent and failure to join necessary parties.  With respect to petitioners’ application for removal, respondents assert that it fails to comply with the notice provisions required by §§275.11[c] and 277.1 of the Commissioner’s regulations.  To the extent petitioners seek an investigation of Mehrhof’s conduct and his suspension and/or termination, respondents argue that the appeal should be dismissed for lack of subject matter jurisdiction.  Respondents also contend that the petition should be dismissed for failure to state a claim.

I will first address several procedural issues.  As an initial matter, I note that petitioner submits newspaper articles as exhibits to her petition.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Rockwell, 51 Ed Dept Rep, Decision No. 16,355; Appeal of Wachala, 49 id. 31, Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision No. 15,826; Application of Coleman, 45 id. 282, Decision No. 15,324).  Therefore, I have not considered such articles for the veracity of their content.

Next, 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.  Consideration of the additional affidavits submitted by both parties subsequent to the reply, consequently, has been similarly limited.  In addition, to the extent that petitioner’s reply responds to other appeals pending before me,[2] such submission is improper and those portions will not be considered.

The appeal must be dismissed on several procedural grounds.  First, it must be dismissed for failure to properly serve respondents.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  Although petitioners seek relief against each named respondent, there is no proof that petitioners personally served any of them.  Although the petition was served upon the district clerk, a district clerk may accept service on behalf of a board of education, but generally not for individual respondents.  Respondents contest service and there is no evidence that the district clerk was authorized to accept service on behalf of respondents individually.  Therefore, because petitioners failed to personally serve the individual respondents, all claims against them must be dismissed.

To the extent petitioners seek removal of respondents Trumper and DiGeronimo, I take judicial notice that they are no longer board members and, thus, that issue is academic.  Moreover, the removal application failed to comply with §277.1 of the Commissioner’s regulations in that it lacked the required notice of petition and, thus, did not secure jurisdiction over the intended respondents (Application of Wolpin, 52 Ed Dept Rep, Decision No. 16,489; Application of Kroniser, 52 id., Decision No. 16,469; Application of Carrion, 50 id., Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).  

To the extent that petitioners seek to invalidate the results of the May 15, 2012 election, the appeal must be dismissed for failure to join a necessary party.  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).  Section 275.8(d) of the Commissioner’s regulations provides in pertinent part: “If an appeal involves the validity of a school district meeting or election ... a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent” (emphasis added)(see Appeal of Schultz, 48 Ed Dept Rep 70, Decision No. 15,796; Appeal of Duffy, 47 id. 86, Decision No. 15,634).

Here, neither winning candidate John Otero nor the Monroe-Woodbury Board of Education was named as a respondent; nor was Otero personally served.  As noted above, winning candidates Brooks and Carter, although named, were not properly served.  Therefore, should petitioners prevail in their challenge to the election, the rights of John Otero, Natalie Brooks and Eleni Carter, as winning candidates, and the Monroe-Woodbury Board of Education, would be affected.  Thus, they are necessary parties to the appeal.  Consequently, in addition to petitioners’ non-compliance with §275.8(d) of the Commissioner’s regulations, petitioners’ failure to join them as respondents requires dismissal of the appeal.

To the extent that petitioners seek an investigation, suspension and possible termination of respondent Mehrhof, I take judicial notice that he is no longer the superintendent and, thus, the matter is academic.  Moreover, I have previously held that the board of education has the sole authority and responsibility to determine if disciplinary action against a district employee is warranted, not the Commissioner (Appeal of Lloyd, 39 Ed Dept Rep 537, Decision No. 14,303; Appeal of Basil, id. 568, Decision No. 13,929).  Therefore, I lack jurisdiction with respect to those matters.

Finally, §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 Rep 10, 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 this disposition I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED AND THE APPLICATION DENIED.

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