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Decision No. 13,638

Appeal of PATRICIA GARARD from action of the Board of Education of the Wyandanch Union Free School District regarding election irregularities.

Decision No. 13,638

(July 12, 1996)

Cooke and Clarke, attorneys for respondent, Lance D. Clarke, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals actions of the Board of Education of the Wyandanch Union Free School District ("respondent"). The appeal must be dismissed.

Petitioner, an unsuccessful candidate in respondent's June 1995 election for library trustee, alleges voting irregularities and seeks a new election. Specifically, petitioner claims that the office of "library trustee" was improperly listed as "school board trustee" on the voting machine ballot. When the irregularity was discovered, the machine was shut down and paper ballots which accurately listed the candidates for library trustee were used until the polls closed. She also alleges that confusion could have resulted because the candidate who was elected as library trustee had a relative on the ballot running for the office of school board trustee. Finally, she claims that the district clerk failed in her assigned responsibilities.

Respondent claims that petitioner has failed to join a necessary party. Respondent also maintains that the results of the election are valid. While it concedes that the title of the office in question was listed incorrectly on the voting machine ballot for approximately two hours, from 10 a.m. until noon, it maintains that the outcome of the election was not affected.

As a threshold matter, this petition must be dismissed for failure to a join a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner 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, in pertinent part:

If an appeal involves the validity of a school district meeting or election . . . a copy of the petition must be served upon the . . . board of education . . and upon each person whose right to hold office is disputed and such person must be joined as a respondent.

Petitioner seeks a new election, which would clearly adversely affect Ghenya Grant who was elected to the office of library trustee in the contested election. Therefore, Ms. Grant is a necessary party, and petitioner's failure to join her requires the dismissal of this appeal.

The appeal must also be dismissed on its merits. In challenging an election, 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 she seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). Here, petitioner has failed to meet that burden. Furthermore, respondent indicates that Ghenya Grant prevailed by 88 votes. Since only 56 votes were cast before the voting machine was shut down (14 of which were cast for petitioner), the outcome of the election would not have differed in the absence of the irregularity.

I have considered petitioner's remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE