Appeal of BETTY J. PETROCELLI from action of the Board of Education of the Sayville Union Free School District regarding an election and application for the removal of Carl Cangelosi, Norm deVenau, and Maureen Dolan as members of the Board of Education.

Decision No. 18,223

(January 10, 2023)

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

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Sayville Union Free School District (“respondent” or “board”) relating to the nominating petition of a board candidate; she also seeks the removal of three board members from office in connection therewith.  The appeal must be dismissed and the application denied.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  On April 26, 2022, respondent received a complaint concerning a nominating petition submitted by Desmond Megna (the “candidate”), who sought to appear on the ballot as a candidate for a seat on the board at its May 2022 annual election.  The complainant alleged that several signatures in the candidate’s nominating petition bore similar handwriting.  Respondent investigated and determined that one individual had signed the petition on behalf, and at the request, of two district residents.

On May 2, 2022, respondent held a special meeting to review the results of the investigation.  The board considered a motion to declare the candidate’s nominating petition invalid and to remove his name from the ballot.  It was defeated by a vote of three to three, with one abstention.

On or about May 13, 2022, the candidate voluntarily withdrew from the race and asked that his name be removed from the ballot.  The election was held on May 17, 2022.[1]  This appeal ensued.  Petitioner’s request for interim relief was denied on May 24, 2022.

Petitioner asserts that respondent erred when it voted to allow the candidate’s name to appear on the ballot notwithstanding its finding that two of the signatures on his nominating petition were signed by proxy.  For relief, petitioner requests a determination that the candidate’s nominating petition was insufficient because it lacked the requisite number of signatures and that the candidate’s name be removed from the ballot.  Petitioner further requests the removal of the three board members who voted to allow the candidate to remain on the ballot.

Respondent argues, among other procedural defenses, that the appeal should be dismissed as moot and for failure to join necessary parties.  On the merits, respondent asserts that it acted reasonably.

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 that no longer exists due to the passage of time or a change in circumstances (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; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).  As indicated above, the candidate voluntarily withdrew his name from consideration prior to the election.  Accordingly, no meaningful relief may be granted at this juncture and the appeal must be dismissed as moot.

Petitioner’s application for removal must be dismissed for failure to join the board members.  In a removal proceeding, the individual whose removal is sought must be joined as a necessary party.  Joinder requires that a party be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition, informing the party to answer the application for removal (8 NYCRR 277.1 [b]; Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756).  The Commissioner has consistently denied applications for removal where the petitioner failed to name the individual sought to be removed in the caption of the petition and notice of petition (Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756).

In this case, the petition was served only upon respondent’s district clerk.  Although petitioner seeks relief against board members Carl Cangelosi, Norm deVenau, and Maureen Dolan, there is no proof that petitioner personally served any of them with a copy of the application.  Under section 275.8 (a) of the Commissioner’s regulations, a district clerk is authorized to accept service on behalf of the board of education, but generally not on behalf of individual respondents (Appeal of S.S., 58 Ed Dept Rep, Decision No. 17,492; Appeal of Kaufman, et al., 57 id., Decision No. 17,250; Appeal of Budich and MacDonald, 54 id., Decision No. 16,774).  Similarly, in the context of a removal application, service upon the district clerk does not secure personal jurisdiction over an individual respondent, such as the three board members here, without evidence that the district clerk was so authorized (Appeal of S.S., 58 Ed Dept Rep, Decision No. 17,492; Application of a Student with a Disability, 57 id., Decision No. 17,391; Application of Lyons-Birsner and Birsner, 57 id., Decision No. 17,160).  Thus, the application must be denied for lack of personal service.

Finally, respondent requests certificates of good faith on behalf of all board members named as respondents (see Education Law § 3811 [1]).  Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in section 3811 (1).  The Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594).  Since the appeal has been dismissed on procedural grounds without any findings on the merits, I hereby certify solely for the purpose of Education Law § 3811 (1) that the individual respondents are entitled to the requested certification.

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

THE APPEAL IS DISMISSED.

THE APPLICATION IS DENIED.

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