Appeal of LINDA CLARK, LISA DOSTER, and GREGG SAWDY from action of the Board of Education of the Lake George Central School District regarding a school district election and application for the removal of Maryanne MacKenzie, Tricia Connor Biles, Donna Prime, and Mario Fasulo as board members and Sarah Burton as district clerk.

Decision No. 18,263

(April 11, 2023)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal purported actions of the Board of Education of the Lake George Central School District (“board”) regarding the district’s May 2022 school board election.  They also seek to remove trustees Maryanne MacKenzie, Tricia Connor Biles, Donna Prime, and Mario Fasulo, and district clerk Sarah Burton (collectively, “respondents”).  The appeal must be dismissed and the application denied.

Petitioners unsuccessfully sought election to positions on the board in respondent’s May 17, 2022 election.  This appeal ensued.  Petitioners’ request for interim relief was denied on October 21, 2022.

Petitioners make several claims regarding the conduct of the May 2022 election.  Generally, they allege that respondents engaged in a variety of improper activities before and during the vote that “swayed the election and created ambiguity and false results.”  For example, they assert that respondent MacKenzie improperly distributed campaign literature at a “meet the candidate” event, that respondents failed to adhere to voter residency and registration requirements, and that respondents improperly refused to provide petitioners with “paper machine reports.”  Petitioners request a recount of the ballots cast at the May 2022 election and related relief.  They also seek the removal of respondents MacKenzie, Biles, Prime, Fasulo, and Burton from office.   

Respondents argue that the appeal must be dismissed as untimely.  They also contend that petitioners seek relief that is beyond the scope of an appeal to the Commissioner.  On the merits, respondents generally deny petitioners’ allegations and argue that the election was conducted appropriately.

The appeal and application must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or 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).  The 30-day timeframe also applies to a removal application pursuant to Education Law § 306 (8 NYCRR 277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892). 

Here, the election and the actions giving rise to petitioners’ removal application occurred on or before May 17, 2022.  Petitioners, however, did not commence this appeal until October 11, 2022, nearly five months later.  Petitioners argue that this delay should be accused because it took several months of research to confirm their suspicions of wrongdoing, some of which were “confirmed” in a September 26, 2022 letter from the superintendent.

I find this explanation unpersuasive.  First, it is well established that conducting research does not extend the time limitation to commence an appeal to the Commissioner (e.g., Application of Jones, et al., 55 Ed Dept Rep, Decision No. 16,823; Appeal of Bentley, et al., 54 id., Decision No. 16,750).  Second, the superintendent’s September 26, 2022 letter did not contain any new information; it merely responded to assertions made by petitioners in an earlier letter.  While the superintendent also transmitted copies of the final vote tallies with his letter, these tallies do not demonstrate any impropriety in connection with the May 2022 election.  Accordingly, the appeal and application must be dismissed as untimely.

In addition to being untimely, much of petitioners’ requested relief exceeds the authority of the Commissioner.  For example, petitioners ask that I order respondent to allow them (or a third party) to review the district’s election processes and procedures, recount the ballots cast at the May 2022 election, and review all voter registration information.  They also request that I reprimand respondents for their conduct and order them to comply with all applicable election laws.  Finally, petitioners ask that I appoint “an outside, unbiased person” to investigate the May 2022 election.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law § 310 (Appeal of He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).  Moreover, 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).  Accordingly, even if timely, these claims would be dismissed as outside of the Commissioner’s jurisdiction. 

Finally, respondents request a certificate of good faith pursuant to 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).  Because there has been no finding that any respondent acted in bad faith, 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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