Decision No. 13,042

(November 9, 1993)

SOBOL, Commissioner.--Petitioners appeal the results of an annual meeting in which the residents of the Mamaroneck Union Free School District ("respondent") approved the school budget. The appeal is dismissed.

Respondent consists of four election districts with a system of personal registration. On May 19, 1993 respondent's school budget was approved by a margin of 84 votes. Voter turnout for the election was the largest experienced by the district since 1981, with more than 2,000 additional voters since the previous annual election. As a result of the dramatic increase in voter turnout, respondent made out 1,533 new registration cards on the day of the election. In response to the need to prepare so many new registration cards, Mr. Bieley, a board member appointed by the board of education to be chairman of the election, assisted the election inspectors during busy periods.

Petitioners challenge 91 of the votes cast as invalid because the individuals who cast them were ineligible to vote, but were permitted to register and vote on the day of the election. Because the budget was approved by only 84 votes, petitioners contend that the 91 allegedly invalid votes warrant either a recount or a new election.

As a preliminary procedural matter, petitioners seek to raise new issues in its reply and reply affidavits which were not included in the petition. Sections 275.3 and 275.14 of the Regulations of the Commissioner of Education set forth the scope of a reply under Education Law '310 and allow a response only to affirmative defenses and new material raised in an answer. The reply does not provide an opportunity to raise new grounds for relief (Appeal of Eastman Kodak Company, 32 Ed Dept Rep 575; Appeal of Alexandreena D., 30 id. 203; Appeal of Santicola, 29 id. 213), or to buttress allegations in the petition or add assertions which should have been included therein (Appeal of Eastman Kodak Company, supra; Appeal of Brousseau, 31 Ed Dept Rep 155; Appeal of Barbara P., et al., 30 id. 198; Appeal of Pronin, 27 id. 203). Therefore, I will not consider those portions of the reply that raise new issues.

Regarding the merits, there is a presumption of regularity in the conduct of an election. The Commissioner of Education will not set aside the results of a school district vote in the absence of evidence of the probability that the alleged irregularities affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd. 26 NY2d 709; Appeal of Brower, 29 Ed Dept Rep 145), are so pervasive in nature as to vitiate the electoral process (Matter of Gilbert, 20 Ed Dept Rep 174), or that the irregularities demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the election provisions of the Education Law (Matter of Levine, 24 Ed Dept Rep 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,et al., 28 Ed Dept Rep 483). To warrant setting aside an election, the improprieties alleged must be substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46). Petitioners have the burden of establishing the facts upon which they seek relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). Upon the record before me, I find petitioners have failed to meet that burden.

Petitioners' main contention appears to be that unregistered voters were allowed to vote in the May 19, 1993 election. A school district may, as respondent has, adopt a system of personal registration pursuant to Education Law '2014. Section 2014 requires the preparation of a registration list of registered voters for the election. Election Law '5-612 requires the county board of elections to deliver registration lists to school districts. When a voter appears to vote at a school district election, his or her registration is verified by looking at the school district's registration list. If the voter's name does not appear on the school district's register, then the county registration list must be checked. An individual is eligible to vote if registered with the school district or by virtue of his or her registration for the general election (Election Law '5-612(2), Appeal of Como, supra). It is true, as petitioners assert, that individuals registered in the general election whose names did not appear on respondent's registration list were allowed to vote in the May 19, 1993 election. However, petitioners are incorrect in their presumption that this is a basis for overturning the election, because allowing individuals to vote who are only registered with the county board of elections and not with the school district is required by law.

Although petitioners appear to contest 91 votes, the record reveals that only 90 votes are at issue in this appeal. Of these 90 contested votes, respondent has established that 45 of the voters were verified as being listed on either the Westchester County registration list or the school district's registration cards; 5 of the names on petitioners' list were individuals who were eligible but did not vote; 1 person's absentee ballot was not counted because she also personally voted in the election; 4 individuals were not registered with the county board of elections nor with the school district, but their names were not on any of the poll lists of the 4 election districts; 2 voters were properly registered with the school district but had undated signatures on the back of their registration cards. Therefore, 57 of the 90 contested votes involved individuals who were either eligible to vote because they were properly registered or were not registered and did not vote. At most, that leaves 33 votes that, even if improper, would not have affected the outcome of the election, because it would still have been decided by a margin of 51 votes. Accordingly, petitioners have failed to demonstrate that the results of the vote do not accurately reflect the will of the voters (Appeal of Bosco, 32 Ed Dept Rep 554; Appeal of Bach, 32 id. 273; Appeal of Singh, 30 id. 284; Appeal of Vecchio, 30 id. 126).

Petitioners also contend that the election results must be overturned because Mr. Bieley, a board member, helped the election inspectors. Education Law '2505(2) authorizes a board of education to appoint a qualified voter of the district as chairperson and contains no restriction barring a board member from that position. Board members are also authorized to provide temporary assistance to election officials during busy periods (Appeal of Uciechowski, 32 Ed Dept Rep 511).

Petitioners also maintain that the election must be annulled, citing the distribution of several flyers urging passage of the budget. While a board of education has a right to present informational material to the voters concerning a proposed annual budget (Education Law '1716), and individual board members are entitled to express their views about issues concerning the district (Appeal of Bosco, supra; Appeal of Weaver, 28 Ed Dept Rep 183), the Court of Appeals has held in Matter of Phillips v. Maurer, 67 NY2d 672, that school district funds may not be used to exhort the electorate to support a particular position. With the exception of a neutral fact sheet prepared by the board of education, the flyers at issue do urge the voters to support the budget proposal. However, the documents themselves clearly state that private organizations are responsible for their preparation. There is no indication in the record that any school district funds or resources were expended in either the preparation or distribution of those flyers. Accordingly, there is no basis to overturn the election.

Petitioners also raise an issue involving inaccessibility to disabled voters of one of the polling places. Petitioners have submitted an affidavit of one voter asserting she was unable to vote due to her inability to negotiate the stairs at the Mamaroneck Avenue School voting district. This type of claim appears to be an assertion of a violation of the Americans with Disabilities Act ("ADA", 42 U.S.C. '12134). However, an appeal to the Commissioner is not the proper forum in which to raise alleged violations of the ADA. Jurisdiction of enforcement of claims raised under the ADA is with the Federal Courts, the U.S. Department of Justice and the U.S. Department of Education (28 C.F.R. ''35.170 - 35.190). I do note, however, that although this one vote would not have affected the outcome of the election, respondent's defense that the facility is handicapped accessible because personnel would assist anyone needing help negotiating the stairs may not be a reasonable accommodation within the meaning of the ADA (42 U.S.C. '12134). I am therefore forwarding this decision to the appropriate field team in my Office of Elementary, Middle and Secondary Education for review and consultation with respondent to prevent future difficulties in making reasonable accommodations for individuals with disabilities.

I have considered petitioners' other claims and find them without merit.

THE APPEAL IS DISMISSED.

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