Decision No. 12,759

(July 24, 1992)

Wayne A. Vander Byl, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner, a resident of the Greece Central School District, appeals the results of a bond vote conducted by respondent board of education. The appeal must be dismissed.

On December 11, 1991, a special district meeting was held to consider a proposition authorizing the levying of a tax and the issuance of bonds for the construction of school facilities. The proposition was approved by a vote of 10,112 to 9,436.

Petitioner appeals these results on the grounds that petitioner's independent tally allegedly establishes serious discrepancies in the official vote tally, and that the integrity of the vote was compromised by the use of district employees and board of education members as election inspectors.

Respondent denies petitioner's allegations and contends that petitioner miscounted the ballots and signature cards and has otherwise failed to establish that the alleged irregularities affected the outcome of the vote.

A school district election will not be set aside in the absence of proof that the alleged irregularities or misconduct affected the outcome of the election (Appeal of Como, et al., 28 Ed Dept Rep 483), are so pervasive in nature as to vitiate the electoral process (Matter of Gilbert, 20 Ed Dept Rep 174), or that the irregularities demonstrate a clear and convincing picture of informality to the point of laxity with respect to the election provisions of the Education Law (Matter of Nicoletta, 7 Ed Dept Rep 115; Matter of Levine, 24 id 172, aff'd sub nom Capobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 112 AD2d 640). Implicit in these decisions is a recognition that there are rare cases in which errors in the conduct of a school election have become so pervasive that the fundamental fairness of the election is vitiated (Appeal of Como, supra).

Respondent has adopted personal registration of voters pursuant to Education Law '2014 and, pursuant to Education Law '2017, the district is divided into 13 election districts. It appears from the record that petitioner, with the assistance of several other individuals, compared the voter signature cards of each voting district to the total votes recorded on an "Interim Tally Sheet" for each of the 13 voting districts, together with the total absentee ballots cast for each voting district. Petitioner's tally showed the following results:

Votes (Interim Tally

District Cards Plus Absentee Ballots)

No. 30 1400 1518

No. 21 3233 3174

No. 31 759 700

No. 28 1240 1143

At the outset, I note that the numbers on the Interim Tally Sheet are based upon hourly telephone reports by the various election inspectors to the District Clerk throughout the day of the election. Respondent indicates that these reports are designed to help the District Clerk keep track of the progress of voting to spot problems and schedule the opening of additional voting machines as individual tallies reach the maximum of 999. Respondent further indicates that, because of arithmetic or transcribing errors in compiling the interim reports, there may be discrepancies between the interim reports and the official vote tallies, which are taken directly from the automatic counters on the voting machines after the closing of the polls. Since the Interim Tally Reports are not intended to reflect an official vote tally, petitioner should have compared the voter signature card totals to the official vote tallies.

Respondent has provided me with copies of the official vote reports from the Chief Election Inspector and Inspector of each district whose vote is in dispute. The official tally for District #30 indicates 1379 machine votes and 21 absentee ballots for a total of 1400 ballots cast. This number coincides with petitioner's tally of 1400 voter signature cards. Therefore, I find no discrepancy exists with respect to District #30.

The official vote report for District #21 indicates there were 3129 machine votes and 35 absentee ballots for a total of 3164 ballots cast. The District Clerk indicates in a sworn affidavit that she counted 3129 signature cards after the vote, matching the number of machine votes. Petitioner counted a total of 3233 signature cards.

In District #31, the official vote report indicates 689 machine votes and 10 absentee ballots for a total of 699 votes cast. The District Clerk indicates her official count of the signature cards totaled 690, which was one more than the number of machine votes. The District Clerk indicates it was possible the one person who signed in to vote failed to operate the machine properly. Petitioner counted a total of 759 signature cards.

In District #28, the official vote report indicates 1133 machine votes and 10 absentee ballots for total 1143 votes cast. The District Clerk indicates her official count of signature card totaled 1133, matching the number of machine votes. Petitioner counted a total of 1240 signature cards.

The District Clerk indicates in her affidavit that she has no explanation for petitioner's signature card totals 3233, 759 and 1240 for Districts #21, 31 and 28, respectively, other than that petitioner miscounted the totals.

Petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). Upon the record before me, I find that petitioner has failed to prove the discrepancies he alleged existed in fact, and were not the result of a miscount by petitioner.

Even if I were to accept that the discrepancies in districts 21, 31 and 28 exist, petitioner has failed to establish that they affected the outcome of the election. The proposition was approved by a margin of 676 votes. If the discrepancies occurred, as many as 226 votes may not have been recorded on the machines. Even if all these individuals had voted against the proposition, it would still have been approved by a margin of 450 votes. If I accept petitioner's allegations that discrepancies existed in district 30, as well as districts 21, 31 and 28, and I accept the vote totals petitioner obtained from the Interim Tally Sheet, instead of the official election reports, the proposition would have still been approved by a margin of 343 votes.

Similarly, even if I accept petitioner's allegations, petitioner has failed to establish that the absence of signatures on 9 voter signature cards or the absence of dates on 318 cards affected the outcome of the election.

With regard to petitioner's allegation that the integrity of the vote was compromised by respondent's approval and use of district employees, board of education members or members of their immediate families as election inspectors, there is no prohibition in the Education Law against appointing such individuals as election inspectors. Education Law '2025(3)(b) provides, in part, that:

Respondent alleges, and petitioner does not deny, that all of the persons appointed as chief inspectors, inspectors and alternates were qualified voters of the district; that some were district employees, but they served only on their own time, not during their regular working hours; that one alternate was a board member, but she was not needed and did not serve; and that they all served as unpaid community volunteers. Petitioner makes no allegations that such individuals engaged in any irregularities or improper conduct as election inspectors or that such irregularities or improper conduct affected the outcome of the vote. The mere appointment of district employees or members of their immediate families is, without more, insufficient grounds to overturn the results of the vote.

THE APPEAL IS DISMISSED.

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