Decision No. 13,277

(October 26, 1994)

Paul M. Callahan, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioners, residents of the Duanesburg Central School District, seek to invalidate the election held on May 25, 1994. The appeal must be dismissed.

Petitioners challenge the election results in which Richard Hoffmann won an election to the Board of Education of the Duanesburg Central School District by one vote. Petitioners claim that the misspelling of candidate Hoffmann's name on the nominating petition resulted in voter confusion about the identity of the candidate. Petitioners further assert that voters did not have enough time to vote, noting that several parents were out of town on a school sponsored field trip and did not return home until after the polls had closed. Additionally, petitioners contend that respondent failed to select ballot positions within the time limit mandated by Education Law '2032. Respondent contends that petitioners have not sustained their burden of proof that any confusion altered the outcome of the election.

Before reviewing the merits, I must address a procedural matter. Petitioners have failed to name or serve the successful candidates for election to membership on the board in their petition. It is well established that a person or party whose rights would be adversely affected by a determination of an appeal in favor of petitioners must be joined as a party (Appeal of Damilatis, 33 Ed Dept Rep 465; Appeal of Williams, 33 id. 318; Appeal of Uciechowski, 32 id. 511). Because a ruling in petitioners' favor would adversely affect the winning candidates in this election, the petition must be dismissed for non-joinder of necessary parties.

Concerning 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 election in the absence of evidence 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 Roberts, 33 Ed Dept Rep 601), are so pervasive that they vitiate the electoral process (Appeal of Roberts, supra; Appeal 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 election provisions of the Education Law (Appeal 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 it is a rare case where errors in the conduct of a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483). To warrant setting aside an election, petitioner must establish that the improprieties are 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' primary contention relates to the failure of several voters to get to the polls prior to closing. The record indicates that several parents volunteered to accompany students on a school field trip. Education Law '2013 requires that polls be open for six consecutive hours after 6 a.m., two of which must be after 6 p.m. The record here shows that the polls were open from 1 p.m. until 9 p.m. --- two hours more than the statutory requirement. Furthermore, the parents who were unable to vote due to attendance on the field trip chose to go on that trip, presumably with the knowledge it might impede their ability to get to the polls. Thus, there is no evidence that they were prevented from voting by any action of respondent. Therefore, I find respondent did not violate the law.

Moreover, petitioner has failed to prove that the misspelling of candidate Hoffmann's name on nominating petitions resulted in sufficient voter confusion such that the outcome of the election was affected. Petitioners have submitted an affidavit from voters which indicates some confusion regarding the identity of the candidate for the board. However, the record reflects that this resulted not from any action of respondent, but from Mr. Hoffmann's own nominating petition in which his name was misspelled as "Hoffman." Moreover, the record reflects that a subsequent newspaper article in the local paper gave biographical information about the candidate that helped to eliminate any continuing confusion, and that the actual ballot had the correct spelling. Finally, the affidavits submitted by petitioners do not indicate that the confusion regarding the candidate's identity actually affected any votes. Indeed, an affidavit submitted in petitioners' reply states that the deponent was no longer confused about the identity of the candidate by the time of the election. Therefore, I find that petitioners failed to meet their burden of proof on the issue of confusion.

Finally, petitioners contend that the election should be overturned because respondent violated Education Law '2032. Education Law '2032(2)(b) requires the positioning of candidates names on the ballot based on the drawing of lots on the day after the last possible date for the submission of nominating petitions. Respondent acknowledges the selection occurred later than the date required by statute. The failure to comply with the date provision of this section of the law is, under the circumstances of this case, technical in nature, and there is no evidence that this technical violation affected the outcome of the election. While petitioners speculate that a voter may have been influenced by the location of candidate Hoffmann's name on the ballot, mere speculation of the effects of a technical violation of the Education Law is an insufficient basis to overturn an election (Appeal of Demos, 34 Ed Dept Rep ___, Decision No. 13232, dated July 29, 1994; Appeal of Roberts, supra; Appeal of Heizman, 33 Ed Dept Rep 325; Appeal of Taylor, supra).

THE APPEAL IS DISMISSED.

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