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Decision No. 12,784

Appeal of ROSEMARIE COBB from action of the Board of Education of the Bemus Point Central School District relating to a school district election.

Decision No. 12,784

(August 21, 1992)

 

Johnson, Peterson, Tener & Anderson, Esqs., attorneys for respondent, Raymond A. Anderson, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner requests that I set aside the results of a 1992-93 budget vote of the Bemus Point Central School District, held at the annual meeting on May 12, 1992. Petitioner further asks that I discipline an unqualified student voter for participating. In addition, petitioner requests that the superintendent of schools be reprimanded for not advising residents of their appeal rights. The appeal must be sustained in part.

Petitioner contends that the results of the May 12, 1992 budget vote should be set aside because an unqualified voter, a 17 year old student, was permitted to vote and the budget passed by only one vote. To qualify to vote at any school meeting or election, a person must be a citizen of the United States, 18 years of age, and a resident within the district for 30 days preceding the district meeting or election (Education Law '2012).

The facts in this case are uncontested. An unqualified voter, a 17 year old student, was permitted to vote. An election inspector challenged the 17 year old before that individual voted, but she was allowed to vote when she represented that she was 18 years old. The budget passed by only one vote: 253 to 252, with 18 blank votes. A tie vote would have resulted in the defeat of the budget.

Respondent contends that there is no evidence on how the 17 year old voted or that her vote affected the outcome of the election. Therefore, respondent contends that there is a presumption that the budget vote was legal and proper.

The Commissioner of Education, as a general rule, will not set aside the results of a school district election on the basis of alleged irregularities or illegal votes cast unless there exists a probability that the results of an election would have been changed by the elimination of the illegal votes cast (Matter of Boyes v Allen, 32 AD2d 990, affd 26 NY2d 709 [1970]; Appeal ofComo, et al., 28 Ed Dept Rep 483; Appeal of the San Remo Civic Association, Inc., 28 id 175; Appeal of Steenrod, 28 id 131; Appeal of Young, 26 id 272).

In this case, there exists a 50 percent probability that the illegal vote affected the outcome of the budget vote. If the 17 year old voted yes, her vote affected the outcome; if she voted no or cast a blank vote, her vote did not affect the outcome. I find the probability that the will of the voters was not expressed because of the illegal vote to be too high to allow the election results to stand. Accordingly, I will order that the results of the May 12, 1992 budget vote be set aside and that a new budget vote be held.

Petitioner requests that the student who illegally voted in this case be disciplined. Education Law '2020 provides that a person who willfully makes a false declaration of a right to vote after being challenged at a school district meeting or election is guilty of a misdemeanor. In addition, any person not qualified to vote at such meeting or election is subject to a fine of ten dollars, to be collected by the superintendent in a lawsuit. Accordingly, I direct respondent to investigate the possibility of pursuing disciplinary and/or legal action against the student.

Finally, petitioner requests that the superintendent of schools be reprimanded for failing to inform residents of their appeal rights and misleading individuals about the appeal process. This claim must be dismissed for failure to join the superintendent of schools as a party to this appeal. Because the rights of the superintendent would be adversely affected by the issuance of a reprimand, he is a necessary party to this appeal (Application of a Child with a Handicapping Condition, 31 Ed Dept Rep 212; Appeal of Keiling, 25 id 122). In any case, I find these contentions without merit. After the budget vote, the superintendent immediately began an investigation into this matter. He shared all pertinent information with district voters in a timely fashion through public meetings of the school board and by informing a local newspaper. When district residents asked about the appeal process, staff in the office of the superintendent acted properly by providing the address of the Commissioner of Education and advising them to consult their own attorney.

THE APPEAL IS SUSTAINED IN PART.

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