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Decision No. 13,301

Appeal of KENNETH COOMBS from actions of the Board of Education of the Harrison Central School District and Rocco Turso regarding the conduct of an election.

Appeal of ANNA BAKER, CARL BAYLIS, REGINA BAYLIS, AL FITZGERALD, CARMELA FITZGERALD, CHERYL GELLER, HARVEY GELLER, DEBORAH IMPERIA, DEBBIE D. MAZZA, HEIDI OUAKNINE, ROBERT PALADINO, CAROLYN ROURKE, JOHN ROURKE, JAMES F. STEAD, JOANN STRATI-STEAD, MARSHA STOCKER, and MAXINE YOUNG from actions of the Board of Education of the Harrison Central School District and Rocco Turso regarding the conduct of an election.

Decision No. 13,301

(December 8, 1994)

Keane & Beane, P.C., Esqs., attorneys for petitioner Coombs, Ronald A. Longo, Esq., of counsel

Kornstein Veisz & Wexler, Esqs., attorneys for petitioners Baker, et al., Kevin Fee, Esq., of counsel

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent board, Rochelle J. Auslander and Stuart S. Waxman, Esqs., of counsel

SOBOL,Commissioner.--Petitioners challenge the election of Rocco Turso ("respondent Turso") to the Board of Education of the Harrison Central School District ("respondent board"). The appeals must be sustained.

On May 11, 1994, respondent board held its annual district budget vote and election for two trustee seats. Elections for trustee positions in the Harrison Central School District are designated for specific seats. One incumbent board member ran unopposed. The other incumbent, Kenneth Coombs ("petitioner Coombs"), was opposed by Rocco Turso. Respondent board announced at its May 18, 1994 meeting that the budget was defeated and that Turso had defeated Coombs by 120 votes.

Petitioner Coombs and petitioners Baker, et al., who are taxpayers and voters in the Harrison Central School District, filed separate petitions on June 8 and 9, 1994, respectively, challenging the election results and asserting that irregularities in the conduct of the election affected the outcome. Because the appeals raise the same legal and factual issues, they have been consolidated for decision.

Petitioners' primary allegation is that at one of the four voting districts (District B - Preston Elementary School), the number of votes registered on the voting machines exceeded by 156 the number of voters who signed the poll list. Petitioner Coombs also asserts that there were 36 additional vote discrepancies at the three other polling places, irregularities on 94 voter cards that would invalidate those votes, and 20 paper ballots that were improperly discarded. Petitioners contend that since the 156 unexplained vote discrepancy exceeds the 120 vote margin of victory by respondent Turso, election irregularities clearly affected the outcome of the election.

Petitioners cite numerous other irregularities which they claim affected the outcome of the election and may have contributed to the vote discrepancy. Petitioner Coombs asserts that respondent Turso engaged in electioneering within the polling place and within 100 feet of the polling place at two voting sites (District B - Preston Elementary School and District D - Parsons Elementary School) despite warnings to stop. Coombs alleges that these and other acts were part of a pattern of conduct and activity by Turso and a current board member (John Salvatore) to control the voting process.

Petitioners also allege that at the Preston voting site there was mass confusion, that certain machines were left unattended for significant periods of time and that individuals who had acted as election inspectors reportedly left the polling area for the last fifteen to twenty minutes of the election, during which John Salvatore was present. Also, witnessess saw the chief election inspector behind the election machine during the last 15 minutes of the election period. Petitioners Baker, et al. claim that fifteen minutes before the polls closed at Preston, the machine tally was 850 and that 144 votes were cast in the last 15 minutes of the voting period at a rate of one vote every 7.6. seconds. Moreover, affidavits in support of their petition state that only three people appeared to vote in the last 15 minutes during which those 144 votes were cast. Petitioners Baker, et al. allege that these facts indicate that election fraud was perpetrated at the Preston site.

Coombs also claims that respondent board failed to appoint election inspectors prior to the election pursuant to Education Law '2025 and that nine of the thirteen inspectors at Preston were related by blood or marriage to the chief inspector, who is allegedly a supporter of Turso. Finally, Coombs claims that on May 18, 1994 respondent board began a meeting prior to its announced time and went into executive session to discuss the election in violation of the Open Meetings Law.

Petitioners requested a stay prohibiting respondent board from seating Turso. They also asked that I set aside the election results as they relate to Coombs and Turso and order a new election. Petitioners Baker, et al. further requested that a stay order compel a new budget vote and prohibit any election workers who worked at Preston from working in any future election on this budget or in any new contest between Coombs and Turso. Two current board members also submitted affidavits in support of petitioners' stay request.

Respondent board asserts that the discrepancy in the votes was less than the number of votes by which Coombs lost, hence a shift in votes would not have made a difference in the outcome of the election. Respondent board further asserts that petitioners failed to meet their burden of proving that any irregularities, if they occurred, affected the election of the candidates. In addition, respondent board challenges the standing of petitioners Baker, et al. to bring this appeal, and also denies petitioners' other charges of irregularities and electioneering. Respondent Turso denies handing out campaign literature within 100 feet and claims that the vote against the budget and for him as the anti-budget candidate accurately reflects the will of the voters.

On June 29, 1994, I granted interim relief precluding respondent board from seating Turso as a member of the board pending an ultimate determination on the merits of the appeals. The stay order did not address the issue of the budget vote as requested by petitioners Baker, et al. since a second budget vote had already been held on June 22, 1994.

As a preliminary matter, on July 18, 1994 petitioners Baker, et al. sought to introduce newspaper articles as additional evidence, even though they were not part of the pleadings. Since my determination in a '310 appeal must rest squarely on the record before me, I cannot consider exhibits which were not properly made part of that record. In addition, petitioner Coombs objects to respondent Turso's submission of a memorandum of law on July 27, 1994, well after the date for submission of pleadings. In this case, where respondent Turso is not represented by counsel, a liberal interpretation of the rules concerning timeliness of submissions is appropriate, particularly where there is no evidence of prejudice to the opposing party (Appeal of Wheeler, et al., 33 Ed Dept Rep 61; Application of a Child with a Handicapping Condition, 28 id. 519). However, a memorandum of law may not be used to belatedly add new assertions which are not part of the pleadings (Appeal of the Bd. of Educ., Tuxedo Union Free School District, 33 Ed Dept Rep 626). Accordingly, while I have reviewed the memorandum of law, I have not considered the portions of it that contain new allegations.

Respondent board challenges the standing of petitioners Baker, et al. to bring this action because petitioners did not allege that they were qualified voters in the district. However, petitioners state in the second paragraph of their petition that they are residents of the district and that they voted in the election. Respondent board has presented no evidence to challenge the voter qualifications of petitioners. In the absence of any such evidence, I find that petitioners have standing to bring this appeal.

Turning to the merits of the appeals, for the May 11 vote, the four elementary schools in the district were designated as election districts: District A - Harrison Avenue Elementary School; District B - Preston Elementary School; District C - Purchase Elementary School; and District D - Parsons Elementary School. The parties agree that the following procedures were in place for the election. Each individual who came to vote was required to sign a "buff card" which was to be dated, initialled and numbered by the election inspector. Each voter was also registered on the poll list in serial order. The voter then took a ticket with a number corresponding to the number on the poll list and handed the ticket to the machine inspector to vote.

The final voting results for the contested trustee seat as announced at the May 18, 1994 meeting were:

District Trustee

Coombs Turso

A - Harrison 544 348

B - Preston 281 604

C - Purchase 254 72

D - Parsons 241 420

Absentee 25 20

Contested _____ 1

Total 1345 1465

The machine tally plus the absentee and contested votes were the basis for the election results which showed Turso winning by 120 votes (1465 to 1345).

However, on May 12, 1994, the day after the election, it came to the attention of the district clerk that there may have been some discrepancies between the number of people who signed in to vote at some districts and the number of votes cast on the machines. When the machine tallies were compared to the poll list and the cards, a significant discrepancy was revealed:

District Poll Regis. Voting Diff.

list card machine

A - Harrison 1090 1090 1090 0

B - Preston 852 852 996 144

C - Purchase 389 389 389 0

D - Parsons 813 813 816 3

___ ___ ___ ___

147

On May 14, 1994 the district clerk issued an interim report acknowledging to the board president that he could not certify the voting results because he had found a discrepancy of 177 votes between the number of votes cast on the voting machines and the number of voters who signed in to vote: 30 at Harrison, 144 at Preston and 3 at Parsons. Later, in his final count of the poll books and the buff cards prior to the May 18, 1994 meeting, the district clerk determined that the discrepancy was 147: 144 votes at Preston and 3 at Parsons. However, the district clerk still did not certify the voting results.

Coombs asserts that the discrepancy is 156. This figure is supported by several affidavits from other voters who also reviewed the poll lists and counted 840 residents at Preston who presented themselves to vote in the poll book compared to the machine count total of 996. In any event, whether the difference is 147 or 156, the discrepancy is significantly greater than the 120 vote margin of victory by Turso.

Board member Salvatore contends that the vote discrepancy at Preston is really only 33, not 144. He claims that the total 885 votes cast for the two candidates at Preston (281+604) compared to the 852 who signed into the registration books at that district leaves a difference of 33. According to Salvatore, the vote discrepancy is, therefore, significantly less than the 120 vote margin of victory and, thus, did not affect the outcome of the election. However, since there was also a budget vote and a vote for an uncontested trustee seat on May 11, looking solely at the votes cast for candidates Coombs and Turso versus the number who signed in does not provide an accurate assessment of the voting situation. The more accurate comparison is the number of voters who signed in versus the machine tally; that discrepancy is at least 144 at Preston.

In its answer, respondent board denies that there is a discrepancy in the voting. By contrast, in its memorandum of law, it admits that there is a 147 vote discrepancy between the total number of individuals who signed in to vote and the number who voted. Respondent board further concedes that this discrepancy cannot be explained. Nonetheless, it argues that all the affidavits taken together do not show irregularities that affected the outcome of the election. Moreover, it argues that the trend of anti-budget/pro Turso votes at Preston, where Turso outpolled Coombs by 323 votes and the budget was defeated by 420 votes, outweighs any discrepancy. Although the budget was defeated overall and Turso was running against the budget, Coombs and the budget were victorious at two of the four districts. Accordingly, I find unpersuasive the argument that there was pervasive anti-budget/pro-Turso voter sentiment sufficient to overcome the admitted vote discrepancy. Moreover, respondent board's clear failure to properly supervise the election process at the Preston site allowed at least 144 votes to be cast at that site when there is no record of that number of voters having presented themselves to vote (see Matter of Patts, 68 St. Dept Rep 71; Matter of Special School Meeting, 58 id. 461). This situation clearly could have affected the outcome of the election.

Coombs also claims that an additional 94 votes are in dispute because 94 voter registration cards had either multiple signatures, no date voted, no inspector's initials, no ballot numbers and/or no registration date or a registration date of the day of the election. He also claims that 20 paper ballots were improperly discarded. Regarding those voters who registered on election day, 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, Appeal of Eagelfeld, 33 Ed Dept Rep 256; Appeal of Como et al., 28 id. 483).

In his June 15, 1994 affidavit, the district clerk reviewed each of the 94 disputed cards and the 20 paper ballots. The district clerk claims that the 20 paper ballots that were discarded were done so in accordance with proper procedure after careful review: 18 of the 20 were not registered, 1 was not a Harrison resident and 1 was not citizen. Of the 94 disputed cards, 50 had no registration date or a registration date the day of the election. The district clerk claims that registration dates for those 50 could be found in the county registration lists. Although the record does not include the county list, since a specific registration date was found for those 50 voters on the county list, there is a presumption that those registration dates and, thus, the 50 votes are valid. An additional 34 cards had incomplete or inaccurate information such as no inspector initials, no ballot number, multiple signatures or no date. Although there was evident sloppiness in the registration process, the district clerk attributes these omissions to explainable clerical errors. Of the remaining 10 cards, 1 voter registered but did not vote, 2 cards belong to petitioners in Baker, et al. who assert they did vote the day of the election and 7 had registration dates which could not be verified. While it appears that only 8 of the 94 disputed cards are potentially invalid, when added to the 147 unexplained votes, they nonetheless contribute to the overall unreliability of the election results. Respondent board should exercise due care in future elections to avoid these mistakes and clerical errors and maintain proper voter registration lists.

Education Law '2025 authorizes the appointment of election inspectors and contains no restrictions barring relatives from those positions. Coombs alleges that inspectors were not appointed prior to the election. In a June 6, 1994 response to Coombs' Freedom of Information request, the district clerk informed Coombs that based on his review of the minutes of meetings from July 8, 1993 through May 18, 1994 he could not a find a resolution appointing clerks and inspectors of election although a list of names for those positions was attached to the July 8, 1993 meeting agenda. However, the affidavit of the district clerk indicates that although there is no written resolution on the record, a videotape of the July 8, 1993 meeting shows that the board passed an omnibus resolution relating to the hiring of employees, including inspectors and clerks. As a prior board member who attended the July 8, 1993 meeting, Coombs contends that the omnibus resolution did not encompass the hiring of employees. Accordingly, it is unclear whether respondent board has complied with Education Law '2025. For future elections, respondent should ensure that election inspectors are duly appointed.

Petitioner Coombs also charges that Turso was handing out leaflets and electioneering within 100 feet of the polling place at the Parsons and Preston voting sites, in violation of Education Law '2031-a. Petitioner's charges are supported by affidavits from a voter and her son who attest that Turso was electioneering within 20 - 30 feet of the election machines, was asked to leave and then returned within 15 minutes. Turso admits that he did hand out literature but asserts that he was well outside the 100 foot limit. He also admits that at Preston, he went inside but only to look at the poll list. The district clerk stated that he had knowledge of only one instance at Parsons in which anyone was near the 100 foot limit. According to the district clerk, that person may have been outside the limit but nonetheless was asked to move and did.

In view of the conflicting affidavits submitted by the parties, there is insufficient proof to sustain petitioner Coombs' allegations of electioneering (Appeal of Cummings, 31 Ed Dept Rep 147). Similarly, there are conflicting affidavits regarding petitioners' other allegations that at the Preston site there was mass confusion, machines were left unattended, inspectors left early and the chief inspector was behind the machines. Although petitioners have not met their burden of proving that these alleged violations occurred, the violations, if proven, would have created an atmosphere of opportunity for numerous irregularities in the conduct of the election.

The record before me reveals, however, that there are other substantial irregularities in the election at issue. The Commissioner of Education will set aside the results of a school district election on the basis of alleged irregularities when it is probable from the evidence that the irregularities affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd. 26 NY2d 709; Appeal of the Bd. of Educ., Fonda-Fultonville CSD, 33 Ed Dept Rep 682). An election may also be set aside where irregularities are so pervasive in nature as to vitiate the electoral process (Matter of Gilbert, 20 Ed Dept Rep 174). Moreover, where the will of the voters cannot be determined due to voting machine inaccuracies, those results must be set aside as well (Appeal of the Bd. of Educ., Fonda-Fultonville CSD, supra). The record before me shows that respondent board failed to properly supervise the election and permitted at least 147 improper ballots to be cast as well as 8 other ballots that may be invalid. Respondent board's failure in this regard was so pervasive as to vitiate the electoral process and resulted in significant voting machine inaccuracies. Accordingly, the election results are set aside.

Since the appeals are sustained for substantive reasons, I decline to address petitioners' remaining contentions. However, I expect that the newly ordered election will comply with all legal requirements.

THE APPEALS ARE SUSTAINED.

IT IS ORDERED that the action of the annual school district meeting held on May 11, 1994 in the Harrison Central School District in declaring Rocco Turso a trustee of the board of education of that district be, and the same hereby is, set aside and vacated.

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

END OF FILE