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Decision No. 13,762

Appeal of TIMOTHY D. TITUS from action of the Board of Education of the Crown Point Central School District and Peggy Patnode regarding a school district election.

Decision No. 13,762

(April 21, 1997)

Michael R. Forcier, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Crown Point Central School District ("respondent") concerning a school district election. The appeal must be sustained.

Petitioner is a resident of respondent's district and a former board trustee. On June 12, 1996, respondent held its annual budget vote and election to fill three trustee seats on the board of education. Three candidates submitted petitions for the three available seats on the board. One of the candidates, Peggy Patnode, was seeking reelection to the board of education.  A write-in campaign was conducted on behalf of another candidate, Fred Herbst. Paper ballots were utilized during the election. At the conclusion of voting, the inspectors counted the ballots and determined the following votes: Patrick McGinnis, 120; Julie Budwick, 119; Peggy Patnode, 73 and Fred Herbst, 71.

After examination, the inspectors declared 27 ballots void because of extraneous marks on those ballots. Petitioner alleges that at least one election inspector indicated that certain ballots were deemed invalid because they did not have an accompanying "check" or "X" mark next to the name of the write-in candidate. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on August 8, 1996. On January 17, 1997, my Office of Counsel directed respondent to submit the 27 void ballots pursuant to 8 NYCRR 276.5. On February 5, 1997, my Office of Counsel further directed petitioner to join Peggy Patnode as a respondent in the appeal pursuant to 8 NYCRR 275.1.

Petitioner seeks my review of the ballots and a determination of the accuracy of the inspectors' findings regarding the void ballots. Petitioner requests that should my review reveal that certain ballots were incorrectly declared invalid, I recertify the outcome or call for a new election. Respondent opposed petitioner's request for interim relief on several grounds. Respondent also contends that the petition is insufficient and fails to state a cause of action.

Education Law '2032(2) sets forth the manner in which votes are to be cast on a paper ballot. That statute requires that a single cross X mark or a single check mark must be placed in the square next to names that have been pre-printed on the ballot. In connection with write-in votes, Education Law '2032(2)(e) provides:

One blank space shall be provided under the name of the last candidate for each separate specific office so that voters may vote for candidates who have not been nominated for the offices to be filled at such election and the writing in, with a pencil having black lead, by a voter, of a name in the blank space so provided, shall indicate a vote. (emphasis supplied)

The statute specifically provides that writing the name is sufficient to indicate a vote. There is no requirement that a voter must place a mark in an adjacent box (Matter of Kenney, 1 Ed Dept Rep 431; Appeal of Gresty, 31 id. 90).

As a general rule, the Commissioner of Education will not set aside the results of a school district election on the basis of alleged irregularities absent proof of the probability that the irregularities affected the outcome of the election (Matter of Boyes v. Allen, 32 Ed Dept Rep 990, 301 NYS2d 664; aff'd 26 NY2d 709, 308 NYS2d 873; Appeal of Como, 28 Ed Dept Rep 483). In this case, petitioner contends that the election was affected by the alleged error of the election inspectors and seeks that I recertify the outcome or call for a new election.

Petitioner relies on my decision in Matter of Kenney, supra, which sustained an appeal where the petitioner showed that the ballot inspectors erred in rejecting a ballot that should have been counted. In that case, the Commissioner of Education reviewed the ballots and determined that the inspectors had incorrectly rejected a ballot. Petitioner believes that the Kenney case applies since it discussed the fact that it was unnecessary for a voter casting a write-in ballot to place an "X" in the box next to the name written in.

In this case, I have examined the ballots and determined that the election inspectors incorrectly declared 10 ballots void where the voter wrote in the name "Fred Herbst" but failed to use an "X" or a "check" before the name. Based on my examination, I find those ten ballots valid. As the Commissioner in Matter of Kenney, supra, observed "[i]t is unnecessary for a voter casting a write-in ballot to place an "X" in a box, even if one appears on the ballot." The record also indicates that one ballot which was improperly declared void was cast for Peggy Patnode.

Consequently, the record shows 81 votes for Fred Herbst and 74 votes for Peggy Patnode. Therefore, Mr. Herbst, having received the third highest number of votes, defeated Ms. Patnode and should have been seated on respondent board, along with Mr. McGinnis and Ms. Budwick, as a result of the June 12, 1996 election. It is understood that respondent Patnode was a de facto member of the board until the date of this decision, and her participation in actions of the board do not invalidate such actions. Should Mr. Herbst refuse to serve as a member of respondent's board of education, respondent is directed to waive the penalty for refusal to serve upon election to a school district office under Education Law '2110 and to act to fill the vacancy pursuant to applicable provisions of the Education Law.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the action of respondent board of education in declaring respondent Patnode to be the winner of the board election held on June 12, 1996, is annulled, and

IT IS FURTHER ORDERED that Fred Herbst be declared a member of the Board of Education of the Crown Point Central School District for the term of office as described in the June 12, 1996 annual meeting notice.

END OF FILE