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Decision No. 13,603

Appeal of JUDITH E. SHARP from action of the Board of Education of the New Lebanon Central School District regarding election irregularities with respect to the seats on the board held by Leonard Berry, Robert Linville, and Leonard Impastato.

Decision No. 13,603

(April 24, 1996)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

MILLS, Commissioner.--Petitioner, an unsuccessful candidate in June 1995 for a seat on the Board of Education of the New Lebanon Central School District held by either Leonard Berry, Robert Linville, or Leonard Impastato ("respondents"), seeks to have the election set aside. The appeal must be sustained.

Petitioner alleges various election irregularities affected the outcome of the election. On June 7, 1995, the respondent board's election began at noon with six candidates running at large for three seats. At 1:45 p.m., a qualified voter reported that it was possible to cast votes for all six candidates, rather than only three. After two election inspectors verified that the machines were malfunctioning, the machines were closed down and voting continued on paper ballots, until the voting machines were repaired at approximately 5:40 p.m. When the machines were shut down, 239 people had already voted. Petitioner also alleges that four voters were disenfranchised because of the malfunctioning machines, that the paper ballots were improper because they were easily confused with absentee ballots, and that candidates engaged in improper electioneering because their campaign materials were copies of absentee ballots.

Petitioner lost the election by 18 votes and commenced this appeal on July 6, 1995. On July 26, 1995, petitioner amended her complaint by adding the successful candidates to the caption of the petition. She requests that the election be declared invalid and a new election ordered, and that any vote taken at a reorganizational meeting on July 6, 1995 related to officers of the board be reconsidered.

Respondent board admits that 239 individuals voted while the machines were malfunctioning, but denies that 4 voters were disenfranchised, that the paper ballots were improper, or that candidates engaged in improper electioneering. It argues that the 239 voters who used the malfunctioning machines voted, on average, for fewer than 3 candidates. Respondent further raises a number of defenses, including failure to join necessary parties and failure to state a claim upon which relief can be granted -- specifically, petitioner's failure to demonstrate that the irregularities affected the outcome of the election.

I decline to dismiss this appeal for failure to join necessary parties. Respondent board argues that the successful candidates are necessary parties and that petitioner failed to name them as respondents. 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). According to the applicable affidavits of service, all three successful candidates 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 their interests were at stake in that petitioner requested the Commissioner to declare the results of the election invalid. Furthermore, petitioner notified each successful candidate of the amended petition. Therefore, I conclude that respondents Berry, Linville, and Impastato had a fair opportunity to respond to the allegations. Indeed, respondent board, of which they were members, did respond. Under the facts of this case, the technical defect of originally failing to name Berry, Linville, and Impastato in the caption is de minimis, did not prejudice respondents, and is not a sufficient basis to dismiss this appeal (SeeAppeal of Barbara D., 34 Ed Dept Rep 118).

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 machine malfunction. 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). However, it has long been held that where the results of an election do not accurately reflect the will of the voters due to voting machine malfunctions, those results must be set aside where, as here, there is no way to ascertain the outcome of the election had the machines been functioning properly (Appeal of Bd. of Educ., Fonda-Fultonville Central School District, 33 Ed Dept Rep 682; Appeal of St. Onge, 30 id. 176; Appeal of D'Amica, 12 id. 66). In such cases, the irregularities are so pervasive that they vitiate the electoral process. Therefore, to ascertain the true wishes of the electorate, it is necessary to set aside the election held on June 7, 1995 and direct respondent board to conduct a new election. It is understood, however, that respondents Berry, Linville, and Impastato were de facto members of the board until the date of this decision, and their participation in actions of the board do not invalidate such actions.

In light of this determination, I will not address petitioner's remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the action of the New Lebanon Central School District resulting in the swearing in of Leonard Berry, Robert Linville, and Leonard Impastato as members 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 vacancies.

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