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Decision No. 12,704

Appeal of NELSON RODRIGUEZ from action of the Board of Education of the Port Chester-Rye Union Free School District regarding a school district election.

Decision No. 12,704

(May 26, 1992)

Miano & Penichet, Esqs., attorneys for petitioner, Luis Andrew Penichet, Esq., of counsel

Francis J. Sisca, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner, an unsuccessful candidate for the school board, appeals from respondent board's conduct of an election and requests that the election results be set aside and a new election ordered. The appeal must be sustained.

On June 5, 1991, respondent board held its annual election to fill two vacant seats. Petitioner Nelson Rodriguez ran against Steven Fischer, Domenic Bencivenga and Chester Edwards for one seat. Three other individuals ran for the other seat. The results of petitioner's race were:

Steven Fischer 691 votes

Nelson Rodriguez 653

Domenic Bencivenga 390

Chester Edwards 264

Petitioner lost his bid for a seat on the board by 38 votes. As a result, Steven Fischer and James Dreves, the winner of the other seat, were sworn into office.

Petitioner filed this appeal based upon his belief that Hispanic voters were systematically disenfranchised. He alleges that not only were they denied the right to vote, but had they been permitted to vote, they would have voted for him and he would have won the election. In support of these assertions, petitioner has submitted the affidavits of 43 individuals who were registered to vote but were denied the opportunity to do so because their names could not be found on the voter registration list. These individuals allege that had they been offered an affidavit and paper ballot pursuant to Education Law "2019-a, they would have voted for petitioner. Petitioner alleges that the failure to provide those voters with an affidavit and paper ballot was tantamount to denial of the right to vote. Finally, petitioner disputes respondent Fischer's contention that his supporters were electioneering within the poll markers, and alleges that his supporters were merely assisting Hispanic voters to cast ballots.

Respondent board contends that it has adopted personal registration for voters pursuant to Education Law "2014. Education Law "2014 provides that registration for school elections may be effected in one of three ways: voting in a prior school election within the past four years; personally appearing before the board of registration for the school district to register; or registering to vote with the county board of elections. Once an individual has registered to vote with the school district, his name is placed on the school list. Respondent board notes that none of the individuals who submitted affidavits on petitioner's behalf had registered with the school district; therefore, none of their names were on the school list. Respondent board contends that any prospective voter who came to vote prior to 5:00 p.m. and whose name could not be found on the school list had his eligibility verified with a phone call to the county board of elections. After 5:00 p.m. the office was closed and county election lists were used for verification of residency. Respondent board denies that there were any election irregularities and contends that any individual whose name could not be found on any of the lists had the opportunity to attest to the fact that he is a qualified voter of the district and cast his vote by paper ballot on the forms that were available on tables in the auditorium. Respondent notes that four persons voted in such a manner.

Respondent board also argues that even if there were election irregularities, petitioner has not met his burden of demonstrating that the outcome of the election would be different, based upon respondent board's contention that seven of the voter affidavits submitted by petitioner are invalid. Respondent board further argues that there is no way to ascertain how many of the individuals who signed petitioner's affidavits actually showed up to vote or waived their right to vote by leaving rather than waiting in a line to have their residency status verified. Respondent board also contends that petitioner's relatives and supporters were electioneering within the 100 foot markers and were, in general, disrupting the orderly conduct of the election. Respondent Fischer contends that the petition is procedurally deficient pursuant to 8 NYCRR "275.8(d), because it fails to name him as a respondent in the caption of the action. Respondent board also argues that the petition is procedurally deficient because it failed to name and was not served upon the winner of the other race for a seat on the school board--James Dreves.

The burden of proof in an appeal to the Commissioner lies with the petitioner (8 NYCRR 275.10; Appeal of Osterman, 30 Ed Dept Rep 290; Appeal of Negrin, 29 id. 484). To invalidate the results of a school district election, petitioner must establish not only that an irregularity occurred, but also that the irregularity probably affected the outcome of the election (Matter of Boyes, et al. v. Allen et al., 32 AD2d 990, 301 NYS2d 664, aff'd 26 NY2d 709, 308 NYS2d 873; Appeal of Hable, 30 Ed Dept Rep 73; Appeal of Paige, 26 id. 247; Appeal of Young, 26 id. 272).

Petitioner has submitted 43 affidavits from individuals, which indicate that although they were registered, they were not permitted to vote. Petitioner would need to have 38 valid affidavits to show that the irregularity affected the outcome of the election. As noted above, respondent has challenged seven of the affidavits. I have carefully reviewed respondent board's challenges to these affidavits and determined that only four of the affidavits are defective. Ms. Buitrago's affidavit indicates that she voluntarily left without casting her vote. Another affidavit indicates that Mr. and Mrs. Ordonez arrived after the polls closed. The fourth challenge demonstrates that Ms. Ceron was not registered to vote with either the school district or the county. Accordingly, I find that petitioner has supplied 39 valid affidavits. Assuming that petitioner meets his burden of showing that there were election irregularities, he has supplied a sufficient number of affidavits to demonstrate that the outcome of the election was affected.

Pursuant to Education Law "2014, respondent board has adopted a system of personal registration to vote at all school district meetings and elections. Individuals may register to vote one of three ways. If they have voted in an election within the prior four years, they are automatically registered to vote (Education Law "2014(2]). They may personally appear at the school district board of registration (Education Law "2014(2]). Or, if an individual is registered to vote pursuant to Election Law "352 with the county board of elections, he is automatically deemed registered pursuant to Education Law "2014(5).

The resolution of this case, in part, requires an analysis of the paper balloting process. If an individual presents himself as a qualified voter and thus eligible to vote, he must be permitted to vote, even if the district is unable to ascertain whether he is a qualified voter. Education Law "2019-a(1) provides:

Whenever a voter presents himself and offers to cast a ballot at any school district . . . election, and the address at which he claims to live is in the election district in which he seeks to vote but his name cannot be found on the list of registered voters or in the registration poll ledger, he shall be permitted to vote only as hereinafter provided:

. . .

b. He may request, swear to and subscribe an affidavit stating that he has duly registered to vote, the address in such election district from which he registered, that he remains a duly qualified voter in such election district and that his registration poll record appears to be lost or misplaced, or that his name has been incorrectly omitted from the list of registered voters . . . . The voter shall then be permitted to vote a paper ballot.

The intent of Education Law "2019-a is to ensure that all eligible individuals who desire to vote are given the opportunity to do so. It is undisputed in this matter that all of petitioner's affiants, with the exception of one, were entitled to cast a vote (see discussion of respondent board's challenges). They were residents of the school district, their names appeared on the county election lists and they presented themselves to vote. They were not permitted to vote, not because they were not entitled to vote, but because respondent board could not locate their names on the election lists, even though each and every affiant's name, save one, was there. At that point, they should have been offered an affidavit and paper ballot pursuant to Education Law "2019-a. Respondent conceded this point at oral argument before me. I have reviewed the record and determined that petitioner's affiants were not offered an affidavit and paper ballot. As a consequence, when they were informed that their names could not be found on the election lists, even though they were there, they were denied the right to vote.

I find that petitioner has amply demonstrated that there were irregularities in the conduct of respondent board's election. The first irregularity is respondent board's inability to locate approximately 39 names of registered voters. It is reasonable to expect that in the conduct of the election a few names may not be located. However, respondent board's failure to locate approximately 39 names is unacceptable. Further, its explanation that the county election list was complicated and cumbersome to work with is woefully inadequate to excuse its inability to locate this number of names, and indicates a need for respondent board to revise its procedures for the conduct of an election. The second irregularity is respondent's failure to offer an affidavit and paper ballot to the 39 individuals who were actually registered and who, through respondent board's mistake, were not permitted to cast a ballot in the normal fashion.

Respondent board further alleges that the petition should be dismissed because petitioner failed to name the winner of the election--Steven Fischer--in the caption of the case, and that he failed to name and serve a necessary party, namely, the winner of the other vacant seat--James Dreves. The regulations of the Commissioner (8 NYCRR 275.8(d) state:

If an appeal involves the validity of a school district meeting or election, or the eligibility of a district officer, a copy of the petition must be served upon the . . . board of education . . . and upon each person whose right to hold office is disputed and such person must be joined as a respondent.

In the instant matter, petitioner failed to name Steven Fischer, the winner of his race, as a respondent in the caption of this case, although he was identified as a respondent in the second paragraph of the petition and was duly served. Essentially, petitioner simply failed to phrase the caption of the case correctly. I do not find that respondent Steven Fischer was prejudiced by this de minimis error (see e.g., Matter of Kluge, 31 Ed Dept Rep 107). Accordingly, this is not a basis to dismiss the petition.

Respondent board also contends that the petition should be set aside because petitioner failed to name and serve the winner of the other race. This argument is similarly without merit. Clearly, if the election was conducted for vacant offices "at large" and candidates with the highest number of votes win the election, petitioner would have been obligated to name and serve as respondents all of the winners (Appeal of Osterman, supra; Appeal of Weaver, 28 Ed Dept Rep 183). Where, as here, candidates run for specific seats, such a requirement is unnecessary. Moreover, in the instant matter, petitioner has only asked that a new election be ordered for the seat for which petitioner ran. To the extent that Matter of Roujansky, 20 Ed Dept Rep 78, stands for the proposition that an individual seeking to set aside the results of the election must name and serve all the winning candidates, even if they ran for specific seats, I decline to follow that reasoning and specifically hold that in an appeal challenging the right of the winner of a specific seat to hold office, only the winner of the specific seat challenged must be named and served as a respondent pursuant to 8 NYCRR "275.8(d). Because petitioner complied with this requirement, respondent's argument must fail.

I have carefully reviewed respondents' remaining contentions and find them to be without merit.

It is understood, of course, that respondent Fischer was a de facto member of the board of education until the date of this decision and that no actions of the board in which he participated as a de facto member are invalidated as a result of this decision.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the action of the annual school district meeting held on June 5, 1991 in the Port Chester-Rye Union Free School District in declaring Steven Fischer a member of the board of education of that district be, and the same hereby is, set aside and vacated.

IT IS FURTHER ORDERED that respondent board of education proceed forthwith to call a special meeting of the district for the purpose of electing a member of such board to fill such vacancy.

END OF FILE