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Decision No. 13,288

Appeal of KENNETH HELLER from action of the Board of Education of the Port Chester-Rye Union Free School District and Stephen F. Fischer concerning the conduct of a school board election.

Decision No. 13,288

(November 8, 1994)

Monroe Yale Mann, Esq., attorney for petitioner

Francis J. Sisca, Esq., attorney for respondent board of education

SOBOL, Commissioner.--Petitioner challenges the results of a school district election held by the Board of Education of the Port Chester-Rye Union Free School District ("respondent board") on May 18, 1994. This appeal must be sustained.

Petitioner was defeated by respondent Stephen Fischer in the May 18th election for a position on respondent board. After the polls closed, an inspection of the voting machines indicated that petitioner had received 26 more votes that respondent Fischer. However, after approximately 113 absentee ballots and 13 paper ballots were counted, respondent Fischer was declared the winner by 10 votes. This appeal ensued.

Before reaching the merits, I will address several procedural issues. Petitioner originally commenced this appeal by serving a notice of petition and petition on respondent board and filing those documents with my Office of Counsel. Subsequently, petitioner was directed to join respondent Fischer as a party to this appeal so that he might be offered the opportunity to participate and submit evidence with respect to the relevant issues. Respondent Fischer was thereafter made a party and submitted an answer.

In that answer, respondent Fischer maintains that the petition must be dismissed because petitioner failed to join him as a party when he originally commenced this appeal and that he never asked to amend his petition or sought leave to join him as a party. However, respondent Fischer's contention ignores the fact that 8 NYCRR 275.1 gives the Commissioner of Education the authority to sua sponte order the joinder of additional parties, as was done in this instance (Matter of Levine 24 Ed Dept Rep 172, aff'd sub nom; Capobianco v. Ambach et al., 112 AD 2d 640; Matter of Anderson, et al., 22 id. 59). Accordingly, respondent Fischer's motion to dismiss for improper joinder is denied.

Respondent Fischer also maintains that the appeal as to him must be dismissed because it is untimely pursuant to 8 NYCRR 275.16. Petitioner originally commenced this appeal by the timely service upon respondent board of the notice and petition. Although petitioner did not serve a copy of the petition upon respondent Fischer within 30 days after the date of the annual meeting of the district, petitioner was directed to serve a copy of the pleadings upon him within 20 days of June 14, 1994. Petitioner complied with that directive. Consequently, in view of the fact that petitioner's pleadings were originally served in a timely fashion, that petitioner served his pleadings upon respondent Fischer in the time period directed, and that any delay in this matter is minimal and has not prejudiced respondent Fischer, I will excuse petitioner's failure to commence this appeal against respondent Fischer in a timely manner.

Concerning the merits of the appeal, petitioner contends that respondent board violated various provisions of Education Law '2018-a regarding absentee ballots. Specifically, petitioner maintains that respondent board failed to post and make available a list of all persons to whom absentee ballots had been issued and that such failure prevented him from having an opportunity to challenge any disputed ballots. The record before me indicates that respondent board had compiled a list of persons to whom absentee ballots had been issued, and, on the day of the election, the list was placed in a folder on a desk used by the chief election inspector. Respondents contend that the placement of the list as described satisfies the statutory requirement for posting of such list. Respondents are wrong. Education Law '2018-a(6)(b) provides that such list shall "be posted in a conspicuous place or places during the election." Placement of the list in a folder on the desk of the election inspector does not satisfy the requirement that the list be posted in a conspicuous place. Respondents' claim that they complied with the law is particularly disingenuous in view of respondent board's written policy, which prohibits anyone but election officials to remain at the desks of election inspectors. The maintenance of the list of persons to whom absentee ballots had been issued in a folder at a location to which respondent board had restricted access effectively prevented petitioner and others from having a reasonable opportunity to challenge any disputed absentee ballots at the time of the election.

Petitioner also challenges action taken by respondent board at the time the absentee ballots were examined. Apparently concerned with maintaining a calm atmosphere while the ballots were being canvassed, respondent board used two policemen to keep people away from the table where the ballots were being examined. The parties disagree as to how far spectators were kept from the election officials as they examined the absentee ballots. However, it is clear that the distance was at least 10 feet, and such action prevented spectators from witnessing the examination of such ballots and the names of the individuals who had submitted absentee or paper ballots.

While respondent board has a right and duty to maintain proper decorum at an election, its prevention of all but district officials from seeing who had submitted such ballots violated Education Law '2018-a(11). That section provides that while election inspectors are examining submitted absentee ballots, "any qualified voter present in the polling place may object to the voting of the ballot contained in any envelope" upon certain specified grounds. Respondent board's method of control, coupled with its failure to have the list of persons to whom absentee ballots had been issued in a conspicuous place clearly precluded any person from exercising his or her right to object to a submitted absentee ballot.

Petitioner also contends that respondent board improperly canvassed paper ballots submitted by voters whose names were not on respondent board's registration poll ledgers. Education Law '2019-a sets forth procedures for determining whether individuals whose names do not appear in the registration poll ledgers are entitled to vote. As noted above, respondent board prevented petitioner from seeing the submitted paper ballots, thereby depriving him of his right to object to such ballots (see Education Law '2019-a [2][c]). Moreover, petitioner alleges that respondent board failed to comply with the notice requirement for canvassing such ballots and permitting him to select poll watchers as such ballots are examined, as required by Education Law '2019-a(2)(c) and (d). The record before me supports that contention. Petitioner further alleges that at the time respondent board examined such paper ballots it could not verify whether such ballots were submitted by qualified voters since the board did not have access to the records of the county board of elections. Respondent board has not responded to that allegation. Accordingly, I must assume that petitioner's contention is correct.

The record thus reveals substantial irregularities in the election at issue. The irregularities show a clear and convincing picture of informality to the point of laxity with respect to compliance with Education Law ''2018-a and 2019-a. While the legal precedent dictates that school district election results are rarely overturned where technical violations exist, such a result is appropriate where, as here, there is a showing of extensive disregard for statutory requirements (Matter of Nicoletta, 7 Ed Dept Rep 115; Matter of Levine, supra). I also note that respondents in this case were involved in an election in 1991, which I subsequently overturned in Appeal of Rodriguez, 31 Ed Dept Rep 471, because of several violations of the Education Law. As stated in Rodriguez, supra, the record indicates a need for respondent board to revise its procedures for the conduct of district elections. Once again, I urge respondent board to so act.

I have carefully reviewed respondents' remaining contentions and find them without merit.

It is understood, of course, that respondent Fischer was a de facto member of the board of education until the date of this decision and that no actions of the board in which he participated as a de facto member are invalidated as a result of this decision. I also note that at the May 18th election, another position on the board was filled by James Dreves. However, there are no allegations before me that challenge the validity of that election. Accordingly, this decision does not affect Mr. Dreves' election to office.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the action of the annual school district meeting held on May 18, 1994 in the Port Chester-Rye Union Free School District in declaring Steven Fischer a member of the board of education of that district be, and the same hereby is, set aside and vacated.

IT IS FURTHER ORDERED that respondent board of education proceed forthwith to call a special meeting of the district for the purpose of electing a member of such board to fill such vacancy.

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