Decision No. 13,527

(December 21, 1995)

MILLS, Commissioner.--Petitioner challenges the results of a May 3, 1995 election in which four candidates were elected to the Board of Education of the Liberty Central School District ("respondent"). The appeal must be dismissed.

On April 6, 1995 respondent held a public budget hearing and presented four possible budget scenarios. On April 10, 1995, respondent adopted a budget proposal to present to the voters at the annual meeting on May 3, 1995. The proposed budget was defeated by a vote of 1153 to 312, and the four candidates whose names were on the ballot were elected to the board of education: Robert DeStefano, Matthew Frumess, Kris Roth and Philip Olsen. Four other individuals received write-in votes, but not enough for election. This appeal followed.

Petitioner alleges that respondent failed to furnish the electorate with budget proposals on a timely basis. Petitioner further claims that respondent failed to properly inform voters regarding the write-in process, thereby denying 500 voters their right to vote. Petitioner also contends that there were improprieties at the polling place, resulting in an invalid election. Finally, petitioner alleges that the superintendent and assistant superintendent engaged in electioneering at the polling place. Respondent denies these allegations and asserts that petitioner has failed to demonstrate that any alleged improprieties affected the outcome of the election.

To overturn an election, petitioner must prove improper conduct by respondent, such as a violation of law or regulation (Appeal of Horton, 35 Ed Dept Rep ___, Decision No. 13503, dated November 6, 1995; Appeal of Goldman, 35 Ed Dept Rep ___, Decision No. 13487, dated September 29, 1995; Appeal of DiMicelli, 28 Ed Dept Rep 327). Petitioner must also establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd. 26 NY2d 709; Appeal of Goldman, supra; 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). 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 Goldman, supra; Appeal of Roperts, supra).

In this case, the record reflects that the paper in the voting booths for write-in ballots ran out one hour before the polls closed. However, respondent did make paper ballots available to voters which could have been used to record write-in ballot votes. In any event, even when a voter is unable to cast a write-in vote because the paper in a voting machine has run out, this irregularity alone is insufficient to overturn the election results (Appeal of Tomkins, Sr., 34 Ed Dept Rep 174). Petitioner must further demonstrate that the outcome of the election would have been different but for the alleged irregularity (Tomkins, supra).

Petitioner asserts that long lines and confusion at the polling place and in the voting booths led to 500 voters being deprived of their right to vote for write-in candidates. As proof, petitioner submits twenty affidavits from individuals who claim that the write-in process was confusing and in some instances left them unable to vote for the write-in candidate of their choice. The total votes cast for each board position were: 869, 1029, 1014 and 1029. The number of write-in and paper ballots cast for these same positions were: 392, 439, 540 and 540. Therefore, the winning candidates were elected by margins of 467, 590, 474 and 489, respectively. Accordingly, petitioner's submission of twenty affidavits -- even if they all assert they would have voted differently -- does not prove that the election would have been different but for the write-in irregularities.

Petitioner's contention regarding untimely notice of the budget proposal and budget hearing is also without merit. Education Law '2004 governs the notice of an annual meeting in a union free school district and Education Law '2017(5) establishes the timing of a public budget hearing. These provisions are made applicable to a central school district by Education Law '1804. Education Law '2004 requires that the first publication of the notice of a district election must be at least 45 days prior to the election. The election in this case was held on May 3, 1995 and the notice was published on March 8, 1995, more than forty-five days prior to the election. Therefore, the notice of the election was timely.

Moreover, Education Law '2017 requires that the budget hearing be held between 10 and 30 days prior to the vote. The budget hearing here was held on April 6, 1995, 27 days prior to the vote, and was therefore in compliance with the statutory requirement.

Petitioner incorrectly contends that respondent's letter to taxpayers regarding the need for taxpayer turnout at the upcoming election violates Phillips v. Maurer, 67 NY2d 672. In Phillips, the Court of Appeals held that school district funds may not be used to exhort the electorate to support either a particular proposition or candidate. The record in this case reflects that the letter at issue was an impartial explanation of the extent of the expected tax increase. The letter encouraged taxpayer involvement and commitment to the school, but did not exhort the electorate to vote in favor of the budget. A school district may distribute purely factual information about a budget vote (Appeal of Martino-Kraft, 34 Ed Dept Rep 441; Appeal of Carroll, 33 id. 219; Appeal of Ruiz, 32 id. 107). Accordingly, respondent's distribution of the letter to the voters was legal.

The record does reflect, however, that the superintendent and assistant superintendent were present during a portion of the election. Other than petitioner's conclusory allegations, however, there is no evidence that they were exhorting the voters to vote in any particular way.

Petitioner also appears to claim that respondent somehow violated election laws by allowing individuals to vote who had not previously registered with the district. Any district resident who is registered to vote with the county board of elections is entitled to vote at school district meetings and elections provided they voted in a general, special or primary election at least once within the last four calendar years (Election Law '5-612(2); Appeal of Prosky, 34 Ed Dept Rep 202; Appeal of Demos, 34 id. 54; Appeal of Shortell, 27 id. 190). Any qualified voter may challenge the right of a person to vote at the time when he requests a ballot (Education Law '2609(5)). A person who has the right to challenge a voter and permits him to vote without challenge, will not be allowed to object to the proceedings of the meeting because such unqualified person participated (Matter of Katz, 18 Ed Dept Rep 276; Matter of Kavanaugh, 5 id. 19).

In this case, petitioner offers no proof that any unqualified voters were allowed to vote. Moreover, petitioner did not challenge any voters' qualifications and cannot now raise an objection to unqualified voters' participation. Accordingly, petitioner has failed to meet her burden of proof.

Based upon the foregoing, I find no basis to overturn this election. I have considered petitioner's remaining claims and find them without merit.

THE APPEAL IS DISMISSED.

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