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Decision No. 12,818

Appeal of ALBERT C. ZOUKY from action of the Board of Education of the Brunswick Common School District regarding conduct of an election.

Decision No. 12,818

(October 1, 1992)

Martin, Shudt, Wallace, DiLorenzo, Copps & Johnson, Esqs., attorneys for respondent, Anne Reynolds Copps, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the results of an election to fill a vacant trustee position on the Board of Education of the Brunswick Common School District ("respondent"). The appeal must be dismissed.

Petitioner was a candidate for a position on respondent's board. The election was held on June 9, 1992, and resulted in the election of John Fisher by a narrow margin of victory over petitioner. This appeal ensued.

Before reviewing the merits of this appeal, it is necessary to address a procedural issue. Respondent maintains that the appeal must be dismissed because of petitioner's failure to join as a respondent the successful candidate for election, Mr. Fisher. Because Mr. Fisher would clearly be affected if this appeal is sustained, his 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 Mr. Fisher. The appeal must, therefore, be dismissed (Appeal of Weaver, 28 Ed Dept Rep 183; Matter of The Baldwin Assn. of Indep. Taxpayers, 22 id. 282).

Regarding the merits, 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 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 asserts that the results of the election must be overturned in light of respondent's failure to properly handle spoiled or defective ballots. Education Law '2032 (3) provides:

All spoiled or defective ballots shall be sealed in an envelope and so endorsed by the inspectors of election. Such envelope shall be placed in the ballot box as provided in subdivision six of section two thousand thirty-three of this chapter.

In an affidavit submitted by a registration clerk at the election, it is indicated that during the course of the election several individuals requested replacement ballots for spoiled or defective ballots. In each case the original ballot was destroyed before the individual was given a replacement ballot. Thus, no individual received more than one ballot. While respondent did not handle spoiled and defective ballots in the manner required by Education Law '2032 (3), it is clear that respondent's failure did not affect the outcome of the election and is not a basis for overturning the results.

Petitioner also contends that the results of the election must be overturned because when respondent opened the ballot box, it failed to compare the number of ballots found in the ballot box with the number of voters recorded on the poll list before tallying the votes. Education Law '2034 (1) provides in part:

Immediately upon the close of the polls the inspectors of election shall count the ballots found in the ballot box without unfolding them, except so far as is necessary to ascertain that each ballot is single. They shall compare the number of ballots found in the ballot box with the number of persons recorded on the poll list as having voted at the meeting or election. If the number of ballots found in the ballot box shall exceed the number of names on such poll list, such ballots shall be replaced without being unfolded in the box from which they were taken and shall be thoroughly mingled in such box and the chief inspector of election shall then publicly draw out as many ballots as shall be equal to the number of excess ballots.

Affidavits from two election inspectors show that the ballots were, in fact, counted by the election inspectors and compared to the poll list prior to tallying the vote. Accordingly, petitioner's contention on this issue must also be dismissed. Even if the ballots had not been counted first, such a failure would not have affected the outcome of the election since the total number of ballots cast was less than the total number of voters who signed the poll list.

Petitioner further contends that the election must be annulled because the ballot box was improperly opened after election results had been declared and the ballot box locked. Education Law '2034 (6) provides:

After the ballots are counted and the statements have been made as required in this section, the ballots, together with the envelopes containing the defective or spoiled ballots, the excess ballots and the void or wholly blank ballots, shall be placed in the ballot box or boxes. Each box shall be securely locked and sealed by the inspectors of election and deposited by the chief inspector with the clerk of the district. The unused ballots shall be placed in a sealed package by the inspectors of election and returned to such clerk by the chief inspector at the same time that such ballot box, or boxes, are delivered to him. The ballot box, or boxes, and the package of unused ballots, after being sealed by the inspectors of election, shall not thereafter be opened, except:

a. upon the order of the commissioner of education in the manner specified in such order, or

b. when a period of six months from the date of the meeting or election has elapsed without any proceeding being commenced in regard to such meeting or election, the board of education may, notwithstanding any provision of this chapter or of the public officers law to the contrary, by written resolution order the unsealing and opening of the ballot box, or boxes, and the destruction of all ballots contained therein, together with the unused ballots.

In an affidavit submitted by a member of respondent board, it is admitted that the ballot box was reopened after the tellers locked it. However, the box was reopened in front of board members, the school attorney, acting clerk, election chairperson and various assembled district residents for the sole purpose of inserting the unused ballots and poll list, which had inadvertently not been inserted when the ballot box was first closed by the election tellers. Since this occurred after the ballots had been tallied and the results announced, it is clear that this irregularity did not affect the outcome of the election. Consequently, there is no basis to overturn the results of the election.

THE APPEAL IS DISMISSED.

END OF FILE