Decision No. 13,079

(December 31, 1993)

August J. Ginocchio, Esq., attorney for respondent Costa

SOBOL, Commissioner.--Petitioner challenges the June 16, 1993 election results of the North Babylon Union Free School District. The appeal is dismissed.

The Board of Education of the North Babylon Union Free School District ("respondent board") held its annual election on June 16, 1993. Candidates Costa, Filgate and Garite were reelected by margins of 159, 63 and 324, respectively. Petitioner challenges that election and seeks to have this appeal certified as a class appeal.

Petitioner alleges numerous improprieties regarding the conduct of the election. Specifically, petitioner asserts that prior to the election, an unknown individual forged a name on United States Postal Service documents to obtain a bulk mail permit on behalf of an organization entitled "Tax Watch of North Babylon". Petitioner asserts that this permit was then used to mail campaign materials with money orders drawn from accounts of the North Babylon Teacher's Organization ("NBTO"). Petitioner alleges that the bulk mailing violated Election Law '17-150; that a violation of Election Law '14-116 and '14-120 occurred because respondents did not identify financial contributors that enabled the bulk mailing to occur and that these alleged contributions exceeded the legal limit; that Election Law '17-156 was possibly violated because a board member used influence to exact political contributions; and that Education Law '1528 was violated when NBTO and candidates endorsed by that organization did not file expenditure statements concerning NBTO's bulk mailing contributions.

Respondent contends that the petition may not be maintained as a class appeal and that the appeal must be dismissed as against respondent Filgate for improper service. Respondent further asserts that petitioner has failed to state a claim upon which relief may be granted because the Election Law is inapplicable to school district elections of union free school districts. Furthermore, respondent argues that petitioner does not establish that any campaign literature was paid for with public funds. Additionally, respondent contends that petitioner has failed to prove that any irregularities affected the outcome of the election.

Before addressing the merits, I will address petitioner's request to treat this matter as a class appeal. Petitioner seeks to bring this appeal on behalf of "all residents and qualified voters," which would include all three named respondents. A class appeal is permitted "only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class" (8 NYCRR '275.2(a)). Clearly respondents do not wish to be parties in the petitioner's class, since they are respondents in the appeal. Accordingly, petitioner has failed to show that all questions of law and fact would be common to all members of the class. Class status is, therefore, denied.

Concerning service of the petition, the Commissioner's regulations require that petitions under Education Law '310 be served personally upon each named respondent or, if the respondent cannot be found upon diligent search, by delivering and leaving the petition at respondent's residence with a person of suitable age and discretion (8 NYCRR 275.8). The petition in this case was not personally served on respondent Filgate, but was instead served on his son. Because the record does not reflect a diligent search for respondent Filgate prior to service upon his son, the appeal must be dismissed as against him for improper service.

Regarding the merits, it is well established that there is a presumption of regularity in the conduct of an election. The Commissioner of Education will not set aside election results in the absence of evidence of alleged irregularities that: probably 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 demonstrate a clear and convincing picture of informality to the point of laxity in adherence to 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 principles is the recognition that there are rare cases in which errors in the conduct of a school election have been so pervasive that the fundamental fairness of the election is vitiated (Appeal of Como,et al., 28 Ed Dept Rep 483). Moreover, 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). Finally, 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). On the claims before me, petitioner has not met that burden.

First, petitioner supplies no evidence that any violation of Education Law '1528 occurred. Specifically, the record does not reflect that respondents failed to disclose any expenditures made on their behalf about which they had knowledge. Additionally, a candidate's incomplete statement of election expenditures is, in and of itself, an insufficient basis for setting aside election results (Appeal of Guttman, 32 Ed Dept Rep 228; Matter of Pendergast, 20 id. 127). Even if there had been a violation of '1528, a proceeding to compel the filing of corrected statements must be venued in the Supreme Court of the State of New York and, therefore, is outside the jurisdiction of the Commissioner of Education (Education Law '1530).

Petitioner's claims of Election Law violations must similarly be dismissed. The Election Law does not govern the conduct of school district elections in central or union free school districts (Election Law '1-102; Appeal of Baker, 30 Ed Dept Rep 228; Matter of Maier, 18 id. 292). Specifically, Articles 14 and 17 of the Election Law omit school districts from those entities to which the Election Law applies (Election Law '14-100; '17-100). Therefore, petitioner's reliance on Election Law Articles 14 and 17 is misplaced.

Petitioner also maintains that the election must be annulled, citing the information about the candidates allegedly disseminated by NBTO. While a board of education has the right to present information to the voters concerning a proposed annual budget (Education Law '1716), and individual board members are entitled to express their personal views about issues concerning the district (Appeal of Bosco, 32 Ed Dept Rep 554; 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. Petitioner appears to be claiming that school district funds were used to encourage the public to vote for a particular candidate by printing leaflets about candidates. However, the record does not support his claim. In fact, the record reveals that information about respondent Costa was not flattering and cannot logically be presumed to have been printed at his direction. Therefore, it does not constitute "an attempt to exhort the electorate," and there is no basis to grant petitioner's request that the election be overturned on Phillips v. Maurer grounds.

Finally, petitioner's assertions that voters were misled and would have voted differently but for the information allegedly disseminated by NBTO, are without foundation. As noted above, 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). 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). Petitioner does not offer even the affidavit of one voter asserting that he or she would have voted differently but for the information in the challenged campaign material. Rather, his allegations are merely speculative and conclusory and do not warrant overturning the election (Appeal of Pickreign, supra; Appeal of Ben-Reuben, et al., 33 Ed Dept Rep __; Appeal No. 13055, dated November 24, 1993; Appeal of Como, supra; Matter of Murtagh, 19 Ed Dept Rep 179).

I have reviewed petitioner's remaining contentions and find that they provide no basis to set aside the results of this school election.

THE APPEAL IS DISMISSED.

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