Appeal and Application of BRENDON NAJM from action of the Board of Education of the West Seneca Central School District regarding eligibility for office and application for the removal of board trustees.

Decision No. 17,853

(June 18, 2020)

Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel.

TAHOE., Interim Commissioner.--Petitioner, a resident of the West Seneca Central School District, challenges a decision of the Board of Education of the West Seneca Central School District (“respondent” or “board”) to permit nonparty Clifford Borchert (“Borchert”) to run for a position as a board trustee.  Petitioner also seeks the removal of unspecified sitting board trustees.  The appeal must be dismissed and the application for removal must be denied.

The record indicates that, on or about April 22, 2019, Borchert submitted a nominating petition to place his name on the ballot as a candidate for a position on the board at the district’s May 21, 2019 election.  In a letter to respondent dated May 3, 2019, petitioner expressed his belief that Borchert was “ineligible to serve on the [b]oard due to residency requirements set forth in State Education Law.”  Petitioner’s letter included several examples of Borchert’s alleged non-residence within the district.  According to respondent’s memorandum of law, petitioner’s evidence “was insufficient to establish that ... Borchert resided outside the [d]istrict.”  “Therefore,” respondent indicates, it “did not authorize any further action to be taken in regard to [petitioner’s] allegations or ... Borchert’s candidacy.”  This appeal ensued.

Petitioner contends that respondent’s “inaction on this issue” violates his civil and property rights as a district taxpayer; that the rights of two “bona fide” candidates would be infringed upon by allowing Borchert to run for office; and that “many [b]oard [t]rustees, having a personal relationship with Borchert and having potentially assisted him with his campaign, were conflicted.”  For relief, petitioner requests that Borchert’s name be removed from the ballot or, if he were to win a seat on the board during the pendency of this appeal, that he be removed from office and replaced with the candidate who received the next highest number of votes.  Additionally, petitioner requests that the State Education Department investigate potential conflicts of interest between Borchert and sitting trustees, resulting in the removal of any trustees found to have “acted improperly.”

Respondent asserts that so much of the appeal as seeks Borchert’s removal from the ballot or from office should be dismissed as moot because, during the pendency of this appeal, the election was held and Borchert did not win a seat on the board.  Respondent further asserts that the appeal must be dismissed because petitioner failed to comply with the notice requirements of the Commissioner’s regulations; failed to join a necessary party or parties; failed to state a claim upon which relief can be granted; lacks standing; and because the Commissioner lacks jurisdiction to award petitioner the relief sought.

To the extent petitioner seeks to prevent Borchert from running for the board or from serving, if elected, the appeal must be dismissed as moot.  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).  The election was conducted on May 21, 2019 and Borchert did not win a seat on the board.  Accordingly, petitioner’s request that Borchert’s name be removed from the ballot or that Borchert not be permitted to serve, if elected, is now moot (Appeal of Ferrara, 34 Ed Dept Rep 47, Decision No. 13,229).

Further, even if this claim were not moot, it would be dismissed for failure to join Borchert, 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).  Petitioner did not name Borchert in the caption of the appeal or serve a copy of the petition upon him, warranting dismissal.

To the extent petitioner seeks removal of any sitting trustees, such application must likewise be denied for failure to join necessary parties.  Petitioner seeks the removal of any trustees “who acted improperly”; however, petitioner did not name any such trustees in the caption of the notice of petition or the petition, nor did he serve a copy of his petition upon any individual trustees.  Because the removal of a sitting trustee would plainly affect such trustee’s rights, any individual trustees whom petitioner seeks to have removed from office are necessary parties to this appeal.  Accordingly, I find that petitioner failed to properly join such trustees, warranting dismissal of the application (Appeal of a Student with a Disability, 55 Ed Dept Rep, Decision No. 16,907; Appeal of Affronti, 54 id., Decision No. 16,756).

I additionally note that the application for removal is defective because petitioner did not comply with the specialized notice requirements for removal applications pursuant to section 277.1(b) of the Commissioner’s regulations (Appeal of Cea, 58 Ed Dept Rep, Decision No. 17,482; Application of Carrion, 50 id., Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).  Because the notice of petition serves to alert a party to the fact that he or she is the subject of removal proceedings, a notice of petition that fails to contain the required language is fatally defective and does not secure jurisdiction over the respondent (Appeal of D.B., 58 Ed Dept Rep, Decision No. 17,449; Application of Carrion, 50 id., Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).

Finally, petitioner’s request for an investigation into “potential conflicts of interest between ... Borchert and sitting [b]oard [t]rustees” must also be dismissed.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).

While the appeal must be dismissed for the reasons articulated above, I remind respondent that it must ensure that all candidates seeking election to the board are residents of the district during the one-year lookback period required by Education Law §2102.

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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