Decision No. 13,591

(April 8, 1996)

MILLS, Commissioner.--Petitioner appeals a decision by the Board of Education of the Odessa-Montour Central School District ("respondent board") rejecting his nominating petition for a seat on the board held by Kevin Murphy ("respondent Murphy"). Petitioner seeks a new election and requests costs and legal fees. The appeal must be sustained in part.

The facts giving rise to this appeal are undisputed. In April 1995, petitioner submitted his nominating petition, bearing 52 signatures, for a vacancy on the board of education. The petition contained a verification followed by petitioner's notarized signature. Due to suspected irregularities in the petition, the superintendent requested each of the candidates to again verify that every signature on his nominating petition was signed in his presence, as they had each attested on the original petitions submitted. Petitioner responded that he had not understood that he needed to be present and personally observe all signatures and produced a corrected notarized statement verifying that he was present for 33 of the 52 signatures. Consequently, board member Louis Dickinson filed an objection to petitioner's nominating petition in his individual capacity as a qualified voter. On April 27, 1995, respondent board held a hearing to examine the sufficiency of petitioner's nominating petition. Respondent board then voted four-to-one to reject the petition. Because one of the other candidates had since withdrawn, the remaining candidate, respondent Murphy, ran unchallenged.

Petitioner contends that respondent board violated his rights as a resident and taxpayer by keeping his name off the ballot. He alleges that he did not fully understand the declaration that he signed and that he did not intend to misrepresent himself to the board. He contends that he was present for more than the 25 signatures required by Education Law '2018 for the placement of a candidate's name on the ballot. Petitioner further contends that Louis Dickinson -- who had filed the objection to petitioner's nominating petition -- should have been excused from respondent board's vote because of a conflict of interest, and that without Dickinson's vote, the three votes against petitioner would not have been sufficient to reject his petition.

As a threshold matter, I must address the procedural issues raised by respondent board: the form of the petition, untimeliness, and failure to join a necessary party. First, respondent board contends that this claim must be dismissed because petitioner failed to comply with sections 275.3(c) and 275.10 of the Commissioner's regulations requiring a petition to contain numbered paragraphs containing a clear and concise statement of the claim. However, petitioner's claims against respondents are apparent and respondent board addressed those claims in its answer and memorandum of law. Where, as here, petitioner is not represented by counsel, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to the respondents (Appeal of Roxbury Taxpayers Alliance, 34 Ed Dept Rep 576; Appeal of Moessinger, 34 id. 246). Therefore, I decline to dismiss the appeal for failure to state a claim.

Respondent board also contends that the petition must be dismissed as untimely. The Commissioner's regulations require that an appeal be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). The thirtieth day for petitioner to appeal respondent board's April 27, 1995 decision fell on May 27, 1995, the Saturday of Memorial Day weekend. Petitioner served respondents on Tuesday, May 30, 1995, the day following the holiday. In essence, petitioner commenced the action one day late, since an extension would have been provided had the thirtieth day fallen on a Sunday or holiday (General Construction Law '20; 8 NYCRR 275.8). Because the delay in this matter is minimal, there is no evidence of prejudice to respondents, and petitioner raises important issues with respect to school district elections, the interests of justice would not be served by dismissing this appeal as untimely (Appeal of Bussfeld, 34 Ed Dept Rep 383). Therefore, a liberal interpretation is again appropriate and I will excuse petitioner's delay in instituting this appeal.

I also decline to dismiss this appeal for failure to join a necessary party. Respondent board argues that respondent Murphy, who was elected to the school board in the contested election, is a necessary party and that petitioner failed to name him as a respondent. Indeed, a party whose rights would be adversely affected by a determination against him is a necessary party and must be joined as such (Appeal of Frasier, 34 Ed Dept Rep 315). Commissioner's Regulation '275.8(d) specifically provides that in an appeal involving the validity of a school district election, each person whose right to hold office is disputed must be served with a copy of the petition and must be joined as a respondent.

Joinder requires that the necessary party be named as a respondent, served with the petition, and afforded a genuine opportunity to respond to the allegations (Appeal of Osterman, 30 Ed Dept Rep 290). Neither respondent Murphy nor the school board was named in the caption, as petitioner did not include a caption on his petition. However, according to the applicable affidavits of service, both Murphy and the board were served a copy of the petition and a notice of petition. It is the notice of petition which alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition (8 NYCRR 275.11; Appeal of Osterman, supra). Also, it was clear from the petition that Murphy's interests were at stake: it identified Murphy as the uncontested candidate in the challenged election. Therefore, I conclude that both Murphy and the board had a fair opportunity to respond to the allegations. Indeed, respondent board, of which Murphy was a member, did respond. Therefore, under the facts of this case, the technical defect of failing to name Murphy or the board in a caption is de minimis, did not prejudice respondents, and is not a sufficient basis for me to dismiss this appeal (SeeAppeal of Barbara D., 34 Ed Dept Rep 118).

With respect to the merits of the appeal, respondent board contends that the appeal must be dismissed because its determination was supported by substantial evidence. However, the Commissioner has broad powers and may substitute his judgment for that of the individuals or boards whose action he is reviewing (Matter of Board of Educ. v. Allen, 6 NY2d 127). On the facts of this case, it is appropriate to do so to protect the voting franchise of district residents.

The Education Law does not require a verified petition. Education Law '2018 merely requires that a nominating petition be signed by a minimum of 25 qualified voters. Respondent board's policy similarly requires a minimum 25 signatures, albeit on a verified petition. Petitioner satisfied the minimum statutory requirement of 25 signatures, and, when given the opportunity by respondent board to cure the alleged defect in his petition, was able to verify that he had witnessed 33 of the original signatures within the time frame provided by respondent board. Accordingly, petitioner not only complied with Education Law '2018, he also met respondent board's requirement.

Respondent board did not provide instructions for completing the petition, either on the form or separately, indicating who should sign the verification statement on the petition. Rather, it was left to the nominee and his or her supporters to understand that it is the person circulating the petition and witnessing the signatures who must sign the statement, not the nominee. The verification statement states:

Respondent board contends that "in presence" means "in my presence," and that the meaning is evident from the context. Unfortunately, it was not evident to petitioner. Nor would it necessarily have been clear to the ordinary person reviewing the petition. School board elections are meant to give lay persons the opportunity to offer their services to their community. The process should be clear and understandable, with election materials written in plain language. Potential candidates should not have to guess at their meaning, nor enlist the services of an attorney to interpret them.

Under these facts, it appears that the board acted arbitrarily in keeping petitioner off the ballot, resulting in an election where one candidate ran unopposed. While I do not find any conflict of interest in Mr. Dickinson's participation in the vote, there were insufficient grounds for rejecting petitioner's nominating petition. In light of petitioner's compliance with the requirements of Education Law '2018, the confusing nature of the verification statement, and petitioner's reasonable misunderstanding of respondent board's verification requirement, petitioner's name should not have been removed from the ballot. Rather, the voters should have been given the opportunity to choose between the candidates.

Respondent board also contends that the appeal must be dismissed because petitioner failed to prove that the outcome of the election was affected by the board's determination. Generally, an election will not be overturned due to election irregularities unless petitioner establishes 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, 35 Ed Dept Rep 126; 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 Educ., Glen Cove City School District, 112 AD2d 640). In this instance, I must distinguish between technical irregularities, such as alleged improper electioneering (Appeal of Goldman, supra) and the present situation, where an individual was denied the opportunity to run for office. Where a candidate's name is removed from the ballot, resulting in an uncontested election, it is undeniable that the election has been affected, and it is impossible for the petitioner to prove conclusively that the outcome would have been different, had his name been placed on the ballot. Accordingly, the wrongful omission of the candidate from the ballot is a sufficient basis, in and of itself, to overturn an election result. To afford petitioner the opportunity to become a candidate for membership on respondent board, it is necessary to set aside the election held on May 9, 1995 and direct respondent board to conduct a new election.

It is understood, however, that Murphy was a de facto member of the board until the date of this decision, and his participation in action of the board does not invalidate such action.

Finally, petitioner's request for attorney's fees must be denied. The Commissioner of Education lacks authority to award attorney's fees in an appeal under Education Law '310 (Appeal of Stewart, 34 Ed Dept Rep 193; Appeal of Ferguson, 32 id. 494).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the action of the Odessa-Montour Central School District resulting in the swearing in of Kevin Murphy as a member of the board of education of that district be, and the same hereby is, set aside and vacated as of this date.

IT IS FURTHER ORDERED that respondent board of education proceed forthwith to call a special meeting of the district for the purpose of filling such vacancy, provided however that the only eligible candidates for such seat shall be petitioner Gerald E. Loughlin and respondent Kevin Murphy.

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