Decision No. 13,722

(December 30, 1996)

Berkman, Henoch, Peterson & Peddy, P.C., attorneys for respondent, Gilbert Henoch, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the actions of the District Clerk of the Hempstead Union Free School District ("respondent") concerning a school board election. The appeal must be dismissed.

Petitioners include two unsuccessful candidates in the Hempstead Union Free School District's school board election held on May 21, 1996. They allege that the winning candidate, Betty Cross, committed certain improper and illegal actions in her bid for election and that respondent failed to address their complaints about these actions. On April 22, 1996, members of a coalition submitted a petition to respondent challenging the qualifications of candidate Betty Cross to run for the district's board of education as well as the district's extension of the deadline for filing nominating petitions from Friday, April 19, 1996 to Monday, April 22, 1996. Although this deadline was originally Friday, April 19, 1996, respondent was allegedly informed by the Commissioner's office that the district should accept any petitions submitted by Monday, April 22, 1996, since the thirty-day nominating period required under Education Law '2018 expired on a Saturday. Due to this extension, respondent informed the candidates who had previously filed nominating petitions on or before April 19, 1996 and whose ballot positions had previously been established by lot that new lots would have to be drawn to establish the ballot positions of all candidates who filed petitions by the new April 22, 1996 deadline.

Subsequently, the candidates' ballot positions changed, placing petitioner Burns fifth on the ballot and petitioner Wilcox in third position. After a candidate withdrew, a space on the ballot was created between the third candidate, petitioner Wilcox, and the fifth candidate, petitioner Burns. At the election held on May 21, 1996, Betty Cross received 435 votes, petitioner Wilcox received 337 votes, petitioner Burns received 315 votes and the remaining candidate received 82 votes. This appeal ensued. Petitioners request for interim relief pending a determination on the merits was denied on July 12, 1996.

Petitioners raise a number of alleged improprieties, including improper receipt of late petitions of school board candidates, redrawing of lots to determine ballot positions to petitioners' Burns and Wilcox detriment, inappropriate use by the winning candidate of confidential student files and campaign flyers pinned to students' clothing. Petitioners also allege that the winning candidate, Betty Cross, is unqualified to fulfill the duties of a school board member because she cannot read or write. Petitioners make a number of requests for relief, including a review of the candidates' minimum qualifications, a ruling that no candidate may use student records, sanctions on school officials for failing to protect confidential student records, documentation of claims made by respondent that the State Education Department directed the district to extend the filing deadline and an order setting aside the election result to enjoin the seating of the winning candidate, Betty Cross. Respondent contends that the appeal is untimely, that the petition fails to provide proper notice and that petitioners have failed to join a necessary party.

As a threshold matter, this petition must be dismissed for failure to join a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioners is a necessary party and must be joined as such (Appeal of Garard, 36 Ed Dept Rep 15; Appeal of Frasier, 34 id. 315). Petitioners seek to enjoin Betty Cross who was elected to the board of education on May 21, 1996. Therefore, Ms. Cross is a necessary party, and petitioners' failure to join her requires the dismissal of the appeal.

The appeal must also be dismissed on the merits. In challenging an election, petitioners 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 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 the vitiate the fundamental fairness of the election (Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483).

In this case, petitioners have failed to meet that burden. The election results indicate that the winning candidate received 120 votes more that petitioner Burns and 98 votes more than petitioner Wilcox. Furthermore, petitioners fail to prove any of their remaining allegations concerning improper use of school records and improper actions by the district clerk. Finally, Betty Cross, the winning candidate, submits an affidavit that she is qualified to serve as a member of the board of education since she is able to read and write and meets the qualifications under Education Law '2102.

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

THE APPEAL IS DISMISSED.

END OF FILE

---