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Monday, February 13, 2012

Failure to satisfy all required procedural elements in an appeal to the Commissioner of Education is fatal to the Commissioner having jurisdiction to consider the matter

Failure to satisfy all required procedural elements in an appeal to the Commissioner of Education is fatal to the Commissioner having jurisdiction to consider the matter
Appeal of Brian M. Kelty seeking the removal of district clerk Concetta Carr, Decisions of the Commissioner of Education, Decision #16,325

Alleging numerous irregularities in the conduct of the election of various candidates seeking to become members of the school board, Candidate Brian M. Kelty claimed that any discrepancy in the recording of votes was due to district clerk’s incompetence and/or the mechanical failure of the voting machines.*  

The Commissioner dismissed the appeal, noting that Kelty had failed to join necessary parties; i.e., any  party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.

In this instance the annulment of the election results as demanded by Kelty would affect the four winning candidates. Accordingly, they are necessary parties to the appeal.

Also, said the Commissioner, “although Carr was served with the petition in her capacity as respondent’s district clerk, she was not named as a respondent in either the notice of petition or the petition itself.” The Commissioner explained:

1. Mere service of the petition does not accomplish joinder of the respondent. 

2. 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.

3. 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.

In light of this, said the Commissioner, “I need not consider the parties’ remaining contentions” and dismissed Kelty’s appeal.

* Kelty also challenged “the impartiality” of the district clerk and several trustees on the board because their names appeared on another candidate's petition and alleging that this constituted “improper electioneering.”

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume51/d16325.html

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