Appeal of JANINE EGAN from action of the Board of Education of the Lindenhurst Union Free School District and Superintendent Daniel Giordano regarding an election.

Decision No. 18,213

(November 28, 2022)

Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Lindenhurst Union Free School District (“respondent” or “board”) and superintendent Daniel Giordano (“superintendent”) regarding the conduct of the district’s May 17, 2022 school board election and budget vote.  The appeal must be dismissed. 

On May 17, 2022, the district held its annual school board election and budget vote.  Incumbent board members Ed Langone and Linda Aniello (the “incumbents”) sought reelection.  Petitioner was an unsuccessful candidate for the board seat occupied by incumbent Aniello.

Petitioner contends that, on May 16, 2022, respondents sent text messages to a group of community members without their consent; these messages encouraged recipients to vote for the incumbents (“robotexts”).  On May 19, 2022, petitioner emailed the superintendent regarding the robotexts.  By email dated May 19, 2022, the superintendent responded, stating that the district did not send the robotexts and, in any event, lacked jurisdiction to address the issue.  This appeal ensued.

Petitioner objects to the robotexts, alleging that voters reasonably attributed them to the district.  In addition, petitioner contends that the superintendent endorsed the incumbents on his personal social media page.  Together, petitioner argues that these actions vitiated the electoral process.  Petitioner additionally complains that she submitted a request under the Freedom of Information Law (“FOIL”) but did not receive a response thereto.  Petitioner does not request any specific relief in the petition.

Respondents contend that the petition must be dismissed for failure to state a claim upon which relief may be granted.  To the extent petitioner challenges the robotexts, respondents argue that the Commissioner lacks jurisdiction over the federal law that governs such communications. 

First, I must address two procedural issues.  Following service of the petition, petitioner submitted three separate additional pleadings and documents in support thereof.  Petitioner did not submit any affidavits reflecting service of these documents on respondents.  Additionally, there is no indication in the record that respondents received the documents.  Therefore, I decline to accept these submissions into the record (see Appeal of Parker, 56 Ed Dept Rep, Decision No. 17,054; Appeal of Hitchen, 55 id., Decision No. 16,916; Appeal of J.H. and T.H., 54 id., Decision No. 16,687)

Additionally, petitioner’s reply contains new allegations that were not raised in 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, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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. 

The appeal must be dismissed for failure to state a claim.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief and shall further contain a demand for the relief to which the petitioner deems himself/herself entitled” (8 NYCRR 275.10).  Such statement must be “sufficiently clear” to advise the respondent of the nature of the petitioner’s claim and of the specific act or acts of which the petitioner complains (id.).  Where the petitioner is not represented by counsel, the Commissioner will interpret this regulation liberally, absent prejudice to the opposing party (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).  Nevertheless, where a petition fails to state a comprehensible claim or fails to identify the specific remedy sought, the appeal must be dismissed (see Appeal of C.P., 55 Ed Dept Rep, Decision No. 16,784; Appeal of Stepien, 48 id. 487, Decision No. 15,926).

Petitioner does not request any relief in the petition.  As such, the appeal must be dismissed (8 NYCRR 275.10; Appeal of Moss, 60 Ed Dept Rep, Decision No. 17,986; see also Appeal of C.P., 55 id., Decision No. 16,784; Appeal of Stepien, 48 id. 487, Decision No. 15,926).  In her reply, petitioner indicates that she does not seek a recount of the election or for the election to be annulled, but rather an investigation.  This explanation cannot be imparted to the petition.  Regardless, even assuming that it could, 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).

Moreover, I note that the majority of petitioner’s claims would be dismissed for lack of jurisdiction.  The Public Officers Law vests exclusive jurisdiction over alleged violations of FOIL (Public Officers Law § 89) and the Open Meetings Law (Public Officers Law § 107) in the Supreme Court of the State of New York (Appeal of H.A., 57 Ed Dept Rep, Decision No. 17,215; Appeal of Flippen, 57 id., Decision No. 17,296).  Therefore, such allegations may not be adjudicated in an appeal pursuant to Education Law § 310, and I have no jurisdiction to address the FOIL or Open Meetings Law allegations raised by petitioner.  Similarly, claimed violations of the Telephone Consumer Protection Act, a federal law, may only be presented to a court of competent jurisdiction (47 USC § 227 [3]; see e.g. Appeal of A.G., 56 Ed Dept Rep, Decision No. 17,084 [dismissing petitioner’s federal claim for lack of subject matter jurisdiction]).

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

THE APPEAL IS DISMISSED.

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