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Decision No. 13,358

Appeal of JANET ELL from action of the Board of Education of the North Babylon Union Free School District and Anthony J. Bellittieri, regarding the conduct of an election.

Decision No. 13,358

(February 9, 1995)

Cahn Wishod & Lamb, Esqs., attorneys for petitioner, Joel Markowitz, Esq., of counsel

Guercio & Guercio, Esqs., attorneys for respondent board, Gregory J. Guercio, Esq., of counsel

Schapiro & Reich, Esqs., attorneys for respondent Bellittieri, Perry Reich, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges the election of Anthony Bellittieri ("respondent Bellittieri") to the Board of Education of the North Babylon Union Free School District ("respondent board"). The appeal must be sustained.

On June 15, 1994, respondent board held its annual election and budget vote. Petitioner, Crystal Bailes and respondent Bellittieri, the incumbent, were candidates for a three-year term of office for one of two board positions. Voting machines supplied by the Suffolk County Board of Elections were used at four schools designated as polling places. After canvassing the votes registered on the various machines and any absentee ballots, the election inspectors reported a total of 997 votes for Bellittieri, 942 votes for petitioner and 156 votes for Bailes. These totals included the count from voting machine #161184 at Belmont Elementary School, one of the polling sites. The election inspectors reported that on machine #161184, 18 votes were cast for Bailes, 89 votes were cast for Bellittieri and 42 votes were cast for petitioner.

Following the announcement of the election results, petitioner requested at 9:50 p.m. that the district clerk impound the machines used in the election to allow for a recount of the vote. At that time petitioner made no allegations of mistakes or misreadings on any machines. Board of Election officials then sealed, secured and impounded the machines that evening. On June 24, 1994, the district clerk notified the candidates and all other interested persons that a recount of the results of the June 15 election would take place at the Board of Election headquarters on June 28, 1994 at 9:00 a.m.

At that time, the district clerk, accompanied by the school district attorney and an employee of the district's business office, requested that the impounded machines be opened. In the presence of a Board of Elections supervisor, the machine counts were read again. Machine #161184 showed that 142 votes had been cast for petitioner, rather than the 42 votes that had been reported on the night of the election. This brought petitioner's vote total to 1042, compared to Bellittieri's 997. In addition, the public counter on the machine, which had been reported as 15920 on the night of the election, showed 15954. Since the initial reading on the machine was 15696, a final count of 15954 indicated that a total of 258 votes were cast on that machine instead of the 224 which had been previously reported. On July 5, 1994, petitioner, accompanied by a law clerk employed by her attorneys, examined the voting machines in the presence of a Board of Elections supervisor and verified that machine #161184 showed 142 votes for her.

On July 6, 1994, respondent board conducted its 1994-95 organizational meeting. At that meeting, one board member proposed a resolution declaring petitioner to be an elected member of the board because she had garnered a plurality of the votes. Three board members voted for the resolution, one voted against and three, including Bellittieri, abstained. Consequently, the resolution was defeated for lack of a majority. The board went into executive session, after which it was announced that a majority of the board had voted to permit Bellittieri to take the oath of office. Bellittieri was then sworn in as trustee for a new three-year term. This appeal ensued on July 14, 1994.

Petitioner requests an order declaring her the winner of the position for trustee and directing respondent board to swear her in. She claims that the election inspectors misread the counter on machine #161184. She alleges that the correct reading should have been 89 votes for Bellittieri and 142 votes for her on that machine. Petitioner asserts that the error in reading the counter on machine #161184 directly affected the outcome of the election because the additional 100 votes gave her a 45 vote margin of victory over Bellittieri.

Respondent board asserts that there is a presumption of regularity in the conduct of school board elections. It further asserts that it complied with all rules, regulations and statutes applicable to school district elections. Respondent Bellittieri urges dismissal of the appeal. He asserts that the recount conducted on June 28, 1994 was improper because only the Commissioner of Education can direct a recount in a school district election. He also claims that the votes on the machines were counted by experienced independent inspectors and at the time the votes were counted, no objection was made that the machine counter had been misread even though each candidate had poll inspectors who witnessed the canvass of the vote. In addition, Bellittieri claims that the arrangements to secure the voting machines after the polls closed were insufficient. Finally, Bellittieri argues that petitioner cannot litigate her claim before the Commissioner because she previously filed a complaint on this same issue in Supreme Court.

Before reviewing the merits of this appeal, it is necessary to address several procedural issues. The Commissioner will determine only matters that are in actual controversy and will not render a determination upon a matter which subsequent events have laid to rest (Appeal of S.D. Transportation, Ltd., 32 Ed Dept Rep 613). Although petitioner commenced a civil action in Supreme Court, Suffolk County, prior to the commencement of this appeal, that action was dismissed on October 24, 1994 for lack of jurisdiction after the judge concluded that the Commissioner of Education has exclusive jurisdiction pursuant to Education Law '2037. Since petitioner's court case was dismissed, Bellittieri's argument that the case is pending in another forum is rendered moot.

Bellittieri also asserts the June 28, 1994 recount was invalid because only the Commissioner can order a recount in a school district election. His implication is that, absent the result of the invalid recount, there is no evidence of irregularity in the vote tally and consequently no basis for the appeal. Moreover, Bellittieri claims that petitioner alleged no mistake or irregularity the evening of the election. Pursuant to Education Law '2037, "[a]ll disputes concerning the validity of any district meeting or election ... shall be referred to the commissioner of education ..." and the sole method of securing a recount of the vote is pursuant to an appeal to the Commissioner (Matter of Senecal, 22 Ed Dept Rep 367; Matter of Morehouse, 15 id. 27). Furthermore, it has been determined that "[t]here is no provision in the Education Law providing for a recount of the votes by the district clerk" (Matter of Senecal, supra; Matter of Lavalley, 12 id. 33). However, since the June 28 recount revealed an undisputed irregularity, it would be unreasonable and inequitable not to explore that discovered irregularity.

On August 9, 1994, after the submission of her petition, petitioner submitted a supplemental affidavit including the transcript of a July 21, 1994 hearing in the Supreme Court action. Petitioner asserts that since the hearing was held six days after her petition was due, and the transcript was not received until August 9, the lateness of the filing should be excused. Bellittieri does not object to the timeliness of the filing, but objects to the substance of the submission. He asserts that consideration of the Supreme Court hearing would undermine the policy of Education Law '2037 by allowing an end run through the courts, even though the court lacks jurisdiction. However, respondent board also submitted the transcript with its answer on August 15, 1994 since the answer referenced portions of the transcript. Moreover, Bellittieri himself submitted both his and petitioner's memorandum of law filed in Supreme Court. Bellittieri cannot object to certain papers from Supreme Court while submitting others for consideration. I find petitioner's excuse for the late submission of the transcript valid. I also see no reason to exclude the sworn testimony of petitioner and other witnesses since the parties' various papers refer to that testimony.

Turning to the merits, although the parties disagree about how there came to be a difference in the vote count on machine #161184 between the night of the election and the subsequent recount on June 28, there is no dispute that the discrepancy exists. From affidavits submitted by other trustees of respondent board and the sworn testimony from the July 21, 1994 Supreme Court hearing, it appears that the following procedures were in place at the election. There were nine machines in total at the four polling places. One was not working, so only eight were actually used. Three of the machines, including #161184, were at the Belmont school. At the Supreme Court hearing, the parties stipulated that the vote tallies on the seven machines other than #161184 accurately reflected the votes for the candidates.

William C. Jansson, an employee of the Suffolk County Board of Election for 14 1/2 years, testified at the hearing that when the polls closed, he personally turned down, sealed and locked each of the three machines, including #161184, located at the Belmont Elementary School. After the tally was publicly read, he closed up the backs, used a drill and lowered the upper part of the machine into the body of the machine for transportation. He took and retained the keys for the machines until the next morning when they were turned over to the Board of Elections. Jansson described in detail the procedure for locking the machines. He explained that a seal goes on and the machine is disabled before the backs are opened for the numbers to be read. The back of the machine cannot be opened until the number two key on the side is turned down which disables the machine. Once the machine is sealed and locked, the seal would have to be cut and removed to get it in operation again. One would have to take the keys, go to the back of the machine, physically open one of the doors and set the reflex latch, which drops after the first vote. Then one would have to go back to the side of the machine, turn the number two key up and push the entrance knob before any votes could be recorded. Any votes would have to be added one at a time. He also stated that it would destroy the counter to try to change the numbers on the cylinder, and if any attempt had been made to alter the counter with an instrument, physical marks on the machine would be evident.

Jansson also explained that each machine weighs about 850 pounds. For transportation purposes, the upper part of the machine is lowered into the body of the machine itself. When it is lowered, it seals the doors so that none of the keys on the side or the back can be used to get into the machine. To get into the machine, someone would have to raise the machine, either with a hand crank or a drill, and then use at least three keys to open it and get the machine back in operation. If the machine were in the lowered position, it would be impossible to break it open.

Jansson stated that based on his knowledge of how the voting machines work and fourteen years of experience, it was impossible to reenter the machine and record any additional votes. Specifically, he testified that

the machine would have to be wound back up again. It would have to be totally -- the seal would have to be cut, which is a physical act, and replaced with another seal, if anybody had one which I think is impossible. They'd have to have the keys and they'd have to have the use of at least three keys to open the machine and reactivate the machine. It would be like starting an election all over again and it would be physically impossible.

In his affidavit, Jansson stated that the machines were taken to Board of Elections headquarters, where they were locked and inaccessible to anyone other than Board of Elections personnel.

Following the vote, the machines were unlocked by Board of Elections supervisors on only two occasions: June 28, 1994 and July 5, 1994, as discussed above. Jansson concluded that based on his knowledge of how he and other Board of Elections personnel handled the machines, there was no possibility that the machines were tampered with or that additional votes were registered on the machines following the closing of the polls. He stated further that any tampering with the machine would have been readily observable. He concluded that the numbers on the machine as seen on June 28 and July 5 would have to be the same as on the night of the election, unless the numbers were initially read incorrectly.

Bellittieri and two other members of respondent board assert by affidavit that insufficient arrangements were made to secure the voting machines following the close of the polls, no seal on the machine was produced and Jansson's credentials as an expert witness are inadequate. They dispute Jansson's conclusion that the machines could not have been tampered with. The affidavit also emphasized the experience of the election inspectors, the fact that each inspector reported and verified in writing their findings of the votes cast and that none of the inspectors, nor any of the candidates' representatives, raised any concern that an error in the reading of the machines had been made.

However, it is undisputed that there is a discrepancy in how the votes were recorded. Moreover, certain official documents were not submitted on the night of the election and erasures were made on one document. Anita Cocheo, the election chairperson at the Belmont school, testified that she observed the closing and locking of the machines at Belmont by Jansson. After the machines were closed, she recorded on certificates the numbers read to her from the rear of each machine by inspector Roseann Cabano. Both Cocheo and Cabano signed certificate 1 which showed the public counter for machine #161184 to be zero before the election and 224 after the election. However, Cocheo also testified that the number 224 was in pencil on the certificate and it appeared that an erasure was made before the 224 was entered. She stated that although she knew it to be her signature on the certificate, she had no recollection of what number she actually recorded on the certificate or any independent recollection of what any of the numbers were. In a subsequent affidavit, Cocheo stated that the certificates are ordinarily given to the district clerk the night of the election, but on the evening of this vote, she inadvertently retained them in her possession until the next morning.

Cabano testified that when she read the results from the backs of the machines the night of the election there were quite a few other people, including those representing the candidates, around the machines. She had to ask them to stand back because it was noisy and chaotic. She also testified that she had no direct recollection of what numbers she actually called out, but she was almost positive she was reading the numbers correctly. She recalled signing the certificate, but had no recollection of what numbers were on the certificate.

The district clerk also testified that the number 224 on certificate 1 appeared to have been made over an erasure. In addition, the final counter number, 15920, also appeared to have been erased initially. Four board members in two separate affidavits also stated that upon the board's review of the original certificates, the votes had been recorded in pencil rather than ink and the listings had been altered. The three board members in one affidavit claim that they inspected the original certificate for machine #161184 on June 29, 1994. Their inspection revealed that both the 224 public counter reading and the 15920 protective counter readings were recorded in pencil and that it is apparent that both numbers were written over erasures. They argue that even assuming that the machine had been tampered with after the vote, if 100 votes for petitioner had been added, that would have resulted in a public counter reading of 324, 100 more than the 224 recorded on the night of the election. In fact, at the June 28, 1994 reexamination, the public counter read 258. Furthermore, the protective counter read 15954, which is also 258 more than the original protective counter reading of 15696.

Finally, there is a question of whether it is mathematically possible for petitioner to have received 142 instead of 42 votes at Belmont the night of the election. On machine #161184, the votes recorded the night of the election were 89 for Bellittieri, 42 for petitioner and 18 for Bailes, for a total of 149. The other two machines recorded a total of 171 and 197 votes respectively. Thus, the total for this seat from the three machines without absentee ballots was 517. (There was another trustee seat and three propositions also at issue.) If petitioner received 142 votes, the total would be 617. Two trustees, who support Bellittieri, claim that they examined the voter registration or buff cards used at Belmont the night of the election and that the total number of voters who presented themselves to vote was 634. That figure is less than what they state is petitioner's figure of 651, but more than the 617 figure noted above. It is unclear how they derive the figure of 651. Moreover, in a subsequent affidavit, the election chairperson states that she examined 644 buff cards plus an additional 32 which had questionable data, such as missing dates. Thus, it appears that more than the minimum 617 people were indeed present to vote at the Belmont site on election night.

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). Mere speculation of the possibility that a voting machine may have been tampered with is not a sufficient basis for setting aside the results of a school election (Appeal of Chaplin, 30 Ed Dept Rep 420; Appeal of Manno and Maloney, 23 id. 172). However, where the will of the voters cannot be determined due to voting machine inaccuracies, those results must be set aside (Appeal of the Bd. of Educ., Fonda-Fultonville CSD, supra).

The record reveals that there is much more than mere speculation that a substantial irregularity occurred in the election at issue. The parties have acknowledged but cannot explain the discrepancy in the vote count on machine #161184. The detailed and exhaustive testimony of Mr. Jansson persuasively indicates the unlikelihood that the machine could have been tampered with. The other witnesses testified that there was no observable evidence of tampering. Accordingly, the admitted discrepancy must lie in the malfunction of the machine, the reading of the numbers off the machine the night of the election and/or in the recording of the numbers on the certificate, which shows evidence of erasure. The board's failure to maintain voter and machine accuracy has substantially vitiated the electoral process, such that the election results must be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the action of the annual school district meeting held on June 15, 1994 in the North Babylon Union Free School District resulting in the swearing in of Anthony J. Bellittieri as 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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