Appeal of CATHERINE NAPPI from action of the Board of Education of the South Country Central School District regarding a voter proposition and application for the removal of Chris Picini, Carol Herrmann, Victor Correa, Rocco DeVito, Lisa DiSanto Grossman, Jeannette Mistler, Julio Morales, Rob Powell and Barbara Schatzman as board members.

Decision No. 17,387

(May 14, 2018)

Guercio and Guercio, LLP, attorneys for respondent board, Douglas A. Spencer, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from the failure of the Board of Education of the South Country Central School District (“respondent”) to take action to place a voter proposition to reduce the minimum distance for transportation on the ballot at the May 20, 2014 annual district meeting and election. Petitioner also seeks the removal of Chris Picini, Carol Herrmann, Victor Correa, Rocco DeVito, Lisa DiSanto Grossman, Jeannette Mistler, Julio Morales, Rob Powell, and Barbara Schatzman as members of the Board of Education of the South Country Central School District.  The appeal must be dismissed and the application must be denied.

On January 29, 2014, in anticipation of submitting a voter proposition reducing the minimum mileage limit for providing transportation, petitioner submitted a Freedom of Information Law request for the number of students walking to school, the number of buses required to transport such students and information relating to the cost of providing such transportation and the resulting increase in tax rate.[1]  In a letter dated February 26, 2014, the district clerk provided petitioner with the requested information. 

On or about April 4, 2014, petitioner submitted a petition for a proposition to reduce the minimum transportation mileage limit from one-half or one and one-half miles, depending on grade level, to zero for pupils at all grade levels and to provide for an appropriation of $564,636.24 for the cost of such transportation (“the universal busing proposition”).  The proposition further stated the tax levy rate as 1.0225 percent and included a notice that the proposition “may bring about a ‘super majority’ at the boards [sic] discretion.”

The universal busing proposition was submitted to respondent for review at its April 23, 2014 meeting, but no motion was made to approve the proposition and no action was taken.  This appeal was commenced by service of the petition upon the district clerk on May 21, 2014.

Petitioner contends that the petition to have the proposition placed on the ballot was valid, that the proposition is within the power of the voters and that it included the required specific appropriation.  Petitioner contends that the members of respondent board of education should be removed from office for “willful violations and neglect of duty” in taking no action on her transportation proposition and thereby failing to fulfill the board’s duty to place the proposition on the ballot.  Petitioner asserts, and respondent admits, that respondent placed an essentially identical universal busing proposition submitted by petitioner on the ballot in the 2013-2014 school year.  Petitioner alleges that the only difference was that in May 2013 “the district intended to pierce the tax cap.”  Respondent admits that the initial budget proposed in May 2013 would have exceeded the property tax levy limit.  In addition to seeking the board members’ removal, petitioner seeks an order directing that a special district meeting be held for a vote on the universal busing proposition.  Finally, petitioner demands, as relief, “if these illegal actions continue by [respondent] that the Commissioner deem it necessary to withhold public funds till they clean up their act Education Law 306 [sic].”

Respondent asserts that the appeal and application must be dismissed because the petition is not properly endorsed in accordance with 8 NYCRR §275.4.  Respondent contends that petitioner lacks standing to challenge respondent’s decision not to place the proposition on the ballot, except insofar as she seeks removal of board members.  Respondent further contends that the appeal must be dismissed as moot, since the annual district meeting was held on May 21, 2014 and no further meaningful relief can be granted.  Respondent also contends that the appeal and application must be dismissed as untimely to the extent petitioner complains about actions or omissions that occurred more than 30 days prior to the commencement of this appeal. 

Respondent asserts that the universal busing proposition was defective as a matter of law and need not have been placed on the ballot, that petitioner has failed to state a claim upon which relief may be granted, that its actions were in all respects appropriate and neither arbitrary nor capricious, and that petitioner has failed to sustain her burden of establishing a clear legal right to the relief she seeks.  Respondent also contends that the board of education was constrained by its own rules of procedure from taking any action relating to the universal busing proposition.  Respondent asserts that it properly rejected the proposition, arguing, among other things that: the proposition was misleading and did not include the language required under Education Law §2023-a(6) to apprise voters that the proposition, in combination with the other propositions on the ballot, would result in the budget exceeding the State tax cap and must be approved by 60 percent of the qualified voters present and voting; the proposition would cause voter confusion; the petition for the proposition improperly usurps the role of the board of education, which proposed a budget within the district’s tax levy limit; and petitioner has submitted almost identical universal busing propositions at almost every annual meeting since 2000, and the voters rejected them, most recently in May 2013.  Respondent claims that petitioner acted in bad faith in seeking to place the proposition on the ballot.

Respondent contends that the application for removal must be dismissed as moot with regard to individual board members Schatzman, Correa and Mistler, because their terms of office ended on June 30, 2014 and they are no longer board members.  Respondent contends that the application for removal must also be denied for failure to include the notice required by 8 NYCRR §277.1 and for failure to serve the individual board members, resulting in failure to join them as necessary parties.  

There are several procedural issues that must be addressed.

Respondent objects to petitioner’s reply, contending that it is not properly verified and also must be rejected because it contains new allegations and exhibits that should have been raised in the petition.  Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal be verified. Respondent is correct that the reply, which is a pleading, does not include a verification in the form prescribed by 8 NYCRR §275.6.  In this case, petitioner only had her signature notarized on each page of the reply but did not include any language attesting to the truth of the facts contained therein.  However, merely notarizing a signature in a pleading does not constitute verification of that pleading (Appeal of J.L., 41 Ed Dept Rep 62, Decision No. 14,615; Appeal of J.N., 40 id. 244, Decision No. 14,472; Appeal of Shabazz, 38 id. 481, Decision No. 14,076).  Because the reply does not include any language attesting to the truth of the factual allegations contained therein, I find that petitioner’s reply is not properly verified (cf., Appeal of A.L.P., 43 Ed Dept Rep 320, Decision No. 15,006 [petition which included language attesting to the truth of the allegations coupled with a notarized signature substantially complied with the verification requirement of 8 NYCRR §275.5]).[2]  Therefore, I have not considered petitioner’s reply. 

Simultaneously with her reply, petitioner submits a document entitled “Petitioner’s Reply to Affirmation in Support of the Verified Answer.”  Since it is responding to an affirmation by the school attorney and an affidavit of the district clerk in support of the answer that explicate the affirmative defenses raised in the answer, and makes arguments in response to respondent’s affirmative defenses, I consider this document an additional pleading in the form of a second reply.  Upon application of a party, the Commissioner may permit the service and filing of additional pleadings for good cause shown.  Such application must state the reasons why the additional pleadings are necessary (8 NYCRR §275.3[b]). Petitioner failed to seek or obtain prior approval for the submission of this additional reply and I find no basis for concluding that an additional reply is necessary.  Thus, I decline to accept it.  Moreover, similar to the first reply, the additional reply is not verified and must be rejected on that basis as well.  

In any event, both petitioner’s first and second reply attempt to raise new issues, such as an alleged violation of petitioner’s constitutional rights, that were not raised in the petition and include additional exhibits that were not attached to the petition.  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, even if the replies were not rejected for the reasons stated above, I would not have considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer. 

Respondent argues that the appeal and application must be dismissed because the petition does not comply with 8 NYCRR §275.4(a), which requires that all pleadings and papers be endorsed with the name, post office address and telephone number of the submitting party.  Specifically, respondent asserts that petitioner has not included her telephone number on her papers and, instead, has substituted her email address.  For the reasons I rejected this argument in Appeal of Nappi (57 Ed Dept Rep, Decision No. 17,300), I decline to dismiss the appeal on this basis.  When a petitioner is not represented by counsel, a liberal interpretation of §275.4(a) is appropriate, particularly where, as here, there is no evidence of prejudice to the respondent (Appeal of DeGroff, et al., 31 Ed Dept Rep 332, Decision No. 12,657).  Petitioner has provided her email address, which enables respondent to contact her.  In this appeal, petitioner alleges that she has no telephone, and respondent has provided no evidence to the contrary.  Under the circumstances, on this record I find that petitioner has substantially complied with §275.4 and was unable to strictly comply with that regulation.  Therefore, I decline to dismiss the appeal based on, at most, a technical violation of the regulation (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Fillie-Faboe, 34 id. 643, Decision No. 13,438; Appeal of DeGroff, et al., 31 id. 332, Decision No. 12,657).

Respondent asserts that petitioner lacks standing to bring the claims raised in the appeal, beyond the application for removal of the individual board members, which it asserts is procedurally defective.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).

Respondent appears to argue that, because petitioner no longer has children who attend school in respondent’s district, she lacks standing to challenge respondent’s actions or inactions with respect to the universal busing proposition that she submitted.  However, as stated in Appeal of Nappi (57 Ed Dept Rep, Decision No. 17,300), Education Law §§2021(19), 2008(2), 2035(2) and 3635(1) confer a right on qualified voters to determine whether to provide transportation beyond that required by statute and to submit voter propositions to change the minimum or maximum mileage limitations for transportation.  Thus, “[t]he power to provide transportation beyond that required by Education Law §3635 is a power reserved to the voters” (Appeal of Powell, 46 Ed Dept Rep 565, Decision No. 15,597), and the denial of the right to vote on an expanded transportation policy confers standing on a qualified voter (Appeal of Wenger, 37 Ed Dept Rep 5, Decision No. 13,790).

Respondent is technically correct that there is no specific allegation in the petition that petitioner is a qualified voter. There is, however, an allegation that petitioner is a district resident and is aggrieved because she has been denied her right to petition to have the universal busing proposition placed on the ballot. The petition to have the instant proposition placed on the ballot, which is included as an exhibit to the verified petition in this appeal, states that signatories must be qualified voters.  The first signature on that petition is petitioner’s signature (with her name and address) and a qualified voter must, of necessity, be a resident of the school district under Education Law §2012(3).  Respondent has not asserted that petitioner or any other signatory to that petition is not a qualified voter or is not a district resident.  Indeed, respondent has alleged that petitioner has submitted universal busing propositions almost every year since 2000 and such propositions have been voted upon at several district meetings, most recently in May 2013.  Apparently, respondent has accepted such propositions which, presumably, would not have occurred had petitioner not been a district resident and a qualified voter.  Since petitioner is not represented by counsel, and it is apparent from the record that petitioner is a district resident and qualified voter, I decline to dismiss the appeal for lack of standing.

Petitioner’s application for the removal of the individual board members must be dismissed as moot with respect to those board members who no longer serve on the board of education.  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).  The record indicates that Victor Correa, Jeannette Mistler, and Barbara Schatzman are no longer board members and I take judicial notice of public information from the official website of the South Country Central School District that Carol Herrmann, Rocco DeVito, Julio Morales and Rob Powell also are no longer board members.  Thus, the application for their removal is moot, warranting denial (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of Anderson, et al., 52 id., Decision No. 16,438; Application of Lilly, 47 id. 307, Decision No. 15,705).

In any event, the application for removal must be denied with respect to all of the individual board members for failure to properly join them as 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). 

None of the individual board members are named in the caption of the petition or notice of petition. Petitioner’s failure to clearly name the individual board members in the caption and thereby provide notice that they need to respond to the petition or face removal is a fatal flaw warranting denial of the application (Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756; Appeal of Race, 53 id., Decision No. 16,567; Appeal of Destino, 52 id., Decision No. 16,461; Appeal of Foshee, 38 id. 346, Decision No. 14,051). 

In addition, none of the individual board members were served with a copy of the notice of petition and petition.  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).

In this case, the affidavit of service submitted with the petition indicates that only the district clerk was personally served.  Such service is effective as to respondent board as an entity, but not as to the individual board members, absent proof that the district clerk was authorized to accept service on their behalf.  On this record, there is no proof that the district clerk was authorized to accept service on behalf of the individual board members.  Thus, service upon them was defective. The application for removal must be denied as to the individual board members for failure to join them as necessary parties, since they clearly would be adversely affected by their removal from office (see Appeal of T.G., 57 Ed Dept Rep, Decision No. 17,195; Application of Lyons-Birsner and Birsner, 57 id., Decision No. 17,160).

The application for removal must also be denied for failure to provide the notice required for removal applications pursuant to 8 NYCRR § 277.1(b).  The notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  Although the petition filed with my Office of Counsel includes the notice required by §277.1(b), respondent asserts that such notice was not included with the petition served upon the district clerk.  Therefore, in addition to lack of proper service, petitioner failed to include the correct notice for removal and, instead, used the notice prescribed under 8 NYCRR §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 respondent (Appeal of T.G., 57 Ed Dept Rep, Decision No. 17,195; Appeal of Reis and Argus, 51 id., Decision No. 16,335; Application of Carrion, 50 id. Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).  It is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Appeal of T.G., 57 Ed Dept Rep, Decision No. 17,195; Appeal of Kelly, 45 id. 38, Decision No. 15,253; Application of Knapp, 41 id. 41, Decision No. 14,608). 

Respondent contends that, to the extent that petitioner complains of actions or omissions that occurred more than 30 days prior to the commencement of this appeal, it is 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Therefore, to the extent that petitioner’s claims are based on actions or omissions that occurred prior to April 21, 2014, they are untimely.

Respondent argues that petitioner’s remaining claims must be dismissed as moot because the annual meeting at which petitioner sought to have her proposition submitted was held on May 21, 2014.  As noted above, 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  However, in this appeal, petitioner does not seek to have her proposition placed on the ballot at the annual meeting; rather, she seeks an order directing that a special district meeting be held for a vote on her universal busing proposition, as well as an order withholding State public funds pursuant to Education Law §306(2).  

Insofar as petitioner requests an order for a special district meeting to vote on the universal busing proposition that she submitted to respondent, the matter is moot.  To be valid, any such proposition requiring the expenditure of moneys must include the necessary appropriation (Education Law §2035[2]; Appeal of McNamee, 56 Ed Dept Rep, Decision No. 17,103; Appeal of Harwood, 36 id. 499, Decision No. 13,785; Appeal of Riordan, et al., 27 id. 182, Decision No. 11,913).  Petitioner’s universal busing proposition included an appropriation for the costs of such transportation in the 2014-2015 school year, but that school year ended, and a special district meeting can no longer be called for a vote on petitioner’s proposition and appropriation for that year.  Because the relief sought cannot be granted, the appeal is also moot as to that demand.

As a final demand for relief, petitioner requests, pursuant to Education Law §306, that “if these illegal actions continue by [respondent] that the Commissioner deem it necessary to withhold public funds till [sic] they clean up their act.”  Education Law §306(2) provides, in pertinent part, that the Commissioner “may also withhold from any district or city its share of the public money of the state for wilfully disobeying any provision of law or any decision, order or regulation....” 

Section 275.10 of the Commissioner’s regulations requires that a petition contain a clear and concise statement of a petitioner’s claim showing that the petitioner is entitled to the relief sought.  Here, petitioner’s request for relief is conditioned on future events, in that she demands relief if respondent’s contested action continues.  Indeed, other than in the prayer for relief, the petition does not address Education Law §306(2) or the elements warranting relief thereunder.   Petitioner’s demand for relief under that statute, thus, is premature at this point and must be dismissed on that basis.[3]

Nevertheless, even if petitioner’s demand for relief under Education Law §306(2) were not premature, such relief is not available under the circumstances presented herein.  Withholding State public funds is a drastic remedy that should not be implemented except in the most exigent circumstances and only after a hearing where willful misconduct or neglect of duty is established (see Matter of an Appeal Against the Actions of the Board of Cooperative Educational Services, Third Supervisory District, Suffolk County, New York, et al., 32 Ed Dept Rep 519, Decision No. 12,905).  In any event, withholding public funds would be an inappropriate remedy under the circumstances presented herein as it would operate solely to the detriment of the district’s students and taxpayers. 

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

While the appeal must be dismissed for the reasons stated above, I admonish the respondent that it was improper for respondent to take no timely action to either approve or reject petitioner’s proposition.  It is respondent’s duty to take action on a proposition duly submitted by the voters pursuant to Education Law §2035(2), and I reject respondent’s technical argument that under Robert’s Rules of Order it could take no action because no motion had been made.  It was respondent’s duty to make such a motion to approve or reject the submitted proposition and I direct respondent to ensure that all voter propositions are acted upon in the future.

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

END OF FILE