Decision No. 13,487

(September 29, 1995)

MILLS, Commissioner.--Petitioner, an unsuccessful candidate in May 1995 for a seat on the Board of Education of the East Ramapo Central School District, seeks to have the election set aside. The appeal must be dismissed.

On May 3, 1995, the East Ramapo Central School District held its annual school district election in which three incumbents ran opposed. Petitioner, one of the challengers, alleges certain improprieties concerning the election. Specifically, petitioner claims that electioneering took place within 100 feet of a polling place, that an incumbent's family member improperly served as an election inspector, and that the district purposely delayed its response to petitioner's information request to interfere with his election. He seeks to have the election declared void and a new election held.

Analysis of election irregularities requires a two-part inquiry. Both prongs of this analysis must be satisfied for the Commissioner to overturn an election. First, petitioner must prove improper conduct on the part of the respondent, such as a violation of Education Law or Commissioner's regulations (Appeal of DiMicelli, 28 Ed Dept Rep 327, Appeal of Amoia, 28 id. 150). Second, petitioner must establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, 301 NYS2d 644, aff'd. 26 NY2d 709, 308 NYS2d 873; Appeal of Roberts, 33 Ed Dept Rep 601), were so pervasive that they vitiated the electoral process (Appeal of Roberts, supra; 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, 492 NYS2d 157). 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). Petitioner has the burden of establishing all the facts upon which he seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163).

In this appeal, petitioner's primary allegation is that improper electioneering took place. Petitioner alleges that on May 3, 1995 he found campaign literature for the three incumbents on the registration table at one of the district polling places. He claims that when he informed the district clerk of the violation, she denied being aware of any restrictions on campaigning at polling places. Respondents admit that a copy of a political advertisement was found on a table at one polling site. They contend, however, that the material was destroyed when petitioner brought it to their attention and that only 38 votes had been cast at that time.

Petitioner has not proven any facts other than those admitted by the respondents -- that a copy of a political advertisement was present at a polling place for a short period of time on election day. Whether or not this constitutes "electioneering within the polling place" as prohibited by Education Law '2031-a, I need not decide in this case. Even if I were to find a violation of the statute, improper electioneering alone is not a sufficient basis for invalidating the results of an election (Appeal of Cummings, 31 Ed Dept Rep 147). Petitioner must also produce evidence sufficient to show that the electioneering affected the outcome of the election. Petitioner does not even allege any facts which would tend to suggest that the literature affected the election results. Therefore, the alleged electioneering is no basis for me to set aside the election.

Petitioner also contends, and respondents admit, that the aunt of an incumbent served as an election inspector. Education Law '2025 authorizes the appointment of election inspectors and contains no restriction barring relatives of board members or candidates from those positions. Therefore, the mere service of an incumbent's relative, without more, is not a reason to overturn the election (Appeal of Williams, 33 Ed Dept Rep 318).

Finally, petitioner contends that the school district wilfully delayed fulfilling his Freedom of Information Law request with the sole purpose of hindering his ability to win the election. As the Supreme Court of the State of New York is the appropriate forum for addressing violations of the Freedom of Information Law, I have no jurisdiction over petitioner's Freedom of Information Law claim, and cannot address it in the context of this appeal (Appeal of Stewart, 34 Ed Dept Rep 193; Appeal of Mitzner, 32 id. 101).

In view of the foregoing, it is unnecessary for me to examine the allegations by both sides of procedural irregularities regarding the filing of this appeal.

THE APPEAL IS DISMISSED.

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