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Decision No. 12,783

Appeal of DORETTA M. PAVACIC from action of the Board of Trustees of the Hicksville Public Library regarding conduct of an election.

Decision No. 12,783

(August 20, 1992)

Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, Esqs., attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the results of an election of trustees of the Hicksville Public Library. The appeal must be dismissed.

Petitioner was a candidate for a position on the Board of Trustees of the Hicksville Public Library, which is a school district public library. During the course of the campaign, the library's counsel wrote to each candidate advising them that, pursuant to Education Law '2031-a, they must refrain from campaigning within 100 feet of the library, which is the polling place for the library election, not only on the day of the election but also during the term of the campaign. The election was held on April 8, 1992. The results showed that petitioner received 279 votes, compared to 479 votes received by Ms. Clara Bennett. Ms. Bennett was declared the winner, and this appeal ensued.

Before reviewing the merits of this appeal, it is necessary to address several procedural issues. My review of the record reveals that petitioner's reply papers contain numerous new exhibits and allegations which were not previously set forth in the petition and which do not respond to new material or affirmative defenses set forth in the answer (8 NYCRR 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Appeal of Brousseau, 31 Ed Dept Rep 155). Therefore, I will not consider those portions of the reply that raise new matters.

Respondent maintains that the appeal must be dismissed because of petitioner's failure to join the successful candidate for election, Ms. Bennett, as a respondent in this appeal. That individual would clearly be affected if this appeal is sustained, and her joinder is required by '275.8(d) of the Commissioner's Regulations, which provides:

Disputed elections. 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 trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent ....

Petitioner has not named or served Ms. Bennett. The appeal must, therefore, be dismissed (Appeal of Weaver, 28 Ed Dept Rep 183; Matter of Baldwin Assn. of Indep. Taxpayers, 22 id. 282).

Respondent also contends that petitioner failed to properly serve the petition. The record indicates the petition was served upon the son of a trustee at the trustee's home at approximately 10:20 p.m. Regulations of the Commissioner of Education '275.8(a) provides:

A copy of the petition, together with all of petitioner's affidavits, exhibits, and other supporting papers ... shall be personally served upon each named respondent, or, if he cannot be found upon diligent search, by delivering and leaving the same at his residence with some person of suitable age and discretion, between six o'clock in the morning and nine o'clock in the evening ... (emphasis added)

Petitioner did not personally serve a trustee of the board and there is no indication in the record before me that petitioner made a diligent search to locate a trustee before leaving the notice and petition with a trustee's child. Accordingly, I find that petitioner has failed to properly serve respondent (Matter of Community School Board No. 22 of the City of New York, 22 Ed Dept Rep 307). In addition, '275.8(a) requires that service, whether made personally upon a respondent or upon a person of suitable age and discretion, be effected between the hours specified in the regulation. Petitioner's failure to service respondent during the hours specified is another basis for dismissing this appeal (Appeal of Board of Education of the City School District of the City of New York, 25 Ed Dept Rep 359). Because these procedural defects are dispositive of this appeal, I will not address respondent's remaining procedural claims.

Regarding the merits of this appeal, there is a presumption of regularity in the conduct of an election, and the results of such an election will be set aside only if there is a demonstration that an irregularity has occurred and that there is a probability the results would have been different but for the occurrence of the irregularity (Matter of Boyes v. Allen, et al., 59 Misc 2d 975; reversed 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Bd. of Educ. of Gloversville, 27 Ed Dept Rep 1; Appeal of Schoenbach, 25 id. 173). Petitioner correctly asserts that respondent's prior counsel provided her with incorrect advice concerning electioneering within 100 feet of the polling place. Education Law '2031-a prohibits electioneering within 100 feet of the polling place during the election, but does not prohibit electioneering at other times. Based on the incorrect advice, petitioner maintains that she was prevented from communicating with the voters. Such a contention, however, ignores the fact that petitioner had available to her many alternative means of communicating with the voters of the district. In addition, the record indicates that petitioner's opponent in the election also complied with the incorrect advice in question. Consequently, petitioner and her opponent campaigned under the same restriction and petitioner was not disadvantaged.

Petitioner also contends that both her opponent and library employees were guilty of several instances of improper electioneering. Those charges are denied by both respondent and Ms. Bennett. Other than petitioner's own assertions on this issue, she offers no evidence to support this charge. In an appeal to the Commissioner of Education, the petitioner bears the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Singh, 30 Ed Dept Rep 284; Appeal of Pickreign, 28 id. 163). Petitioner has not met her burden of proof in this appeal.

Petitioner also contends that respondent acted in violation of the Open Meetings Law (Public Officers Law '100, etseq.) at two recent meetings. The Commissioner has repeatedly held that alleged violations of the Open Meetings Law must be pursued in a judicial proceeding in Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules or in a judicial action for declaratory judgment and injunctive relief, and may not be the basis of an appeal to the Commissioner of Education (Public Officers Law '107; Matter of Bd. of Ed., Cornwall CSD, 25 Ed Dept Rep 250; Matter of Lawson, 24 id. 132; Matter of Gang, et al., 23 id. 5).

I have reviewed petitioner's other contentions and find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE