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Decision No. 13,888

Appeal of BRADLEY GRAVINK, from action of the Board of Education of the Clymer Central School District and Darryl White regarding the conduct of a school district election.

Decision No. 13,888

(March 13, 1998)

Couch, White, Brenner, Howard & Feigenbaum, LLP, attorneys for petitioner, Mark F. Glaser, Esq., of counsel

Beckstrom & Plumb, Esqs., attorneys for respondent Board of Education, Charles G. Beckstrom, Esq., of counsel

Norton/Radin/Hoover/Freedman, Esqs., attorneys for respondent White, Andrew F. Freedman, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the result of a June 10, 1997 election in which Darryl White ("respondent White") was elected to the Board of Education of the Clymer Central School District ("respondent board"). The appeal must be sustained in part.

Respondent’s board of education is comprised of five members. Pursuant to a purported "Gentleman’s Agreement" allegedly in effect in the district for the last 60 years, seats on the district's board are informally allocated among the communities comprising the district. Under the "gentleman's agreement" two seats on the board are allocated for the Town of Clymer, one seat for North Clymer, one seat for the Town of Mina, and one seat for French Creek. On May 20, 1997, respondent board met and voted to mail out a newsletter to residents of the district, to explain the budget, the budget voting process, and "the gentleman’s agreement on the board seat." The newsletter sent out by the district included an article, which stated that:

Gentlemen’s Agreement

For the past 60 years or so, a "gentlemen’s agreement" has been in place regarding seats on the Board of Education. This agreement essentially apportions the five Board positions among the five major communities that comprise our school community.

The agreement, which was put into place to provide representation from all the communities involved, holds that the Board of Education be comprised of one Board member from the Town of Mina, one from French Creek, one from North Clymer and two from Clymer Town.

The board seat open this year is designated by the informal agreement as a Clymer seat.

Gentlemen’s agreements are fairly common in education and, in fact, our own BOCES has a very extensive and successful one in place for representation on its Board.

A gentlemen’s agreement is, of course, only good for as long as the general populous [sic] is willing to honor it.

At the end of the article, the names of the two candidates and their residences were listed. It is indicated that respondent White resided in Clymer, and Dennis Luce resided in Findley Lake. The vacant seat on the board was a "Clymer seat" under the "gentlemen’s agreement."

On May 21, 1997, respondent’s superintendent was quoted in the Jamestown Post-Journal regarding the May 20th board meeting as saying that while there had been some variations on the "gentlemen’s agreement" in the past, that is "nothing like what they are trying to do now." The superintendent alleges that he was misquoted in this newspaper article.

On June 10, 1997, respondent board held its annual meeting pursuant to Education Law "2002(1). At the meeting, the polls were opened at approximately 9:45PM, and closed at 10:30PM. No absentee ballots were authorized for this election. Respondent White (the Clymer candidate) received 365 votes and the losing candidate, Dennis Luce (from Findley Lake), received 362. This appeal ensued.

Petitioner objects to the limited time respondent board permitted for voting at the district's June 10, 1997 annual meeting. Petitioner further claims that respondent's newsletter and its superintendent's comments in advance of the election improperly publicized and endorsed the so called "gentleman's agreement" and constituted improper electioneering that affected the outcome of the election. Petitioner seeks an order annulling the outcome of the election, and seeks a new election where the polls are required to be opened for a period of not less than six hours.

Respondent board contends that its gentlemen’s agreement is appropriate and common in rural districts, that its election was proper, and that petitioner has failed to submit any proof that the newsletter article influenced people to vote a certain way. Furthermore, Respondent White contends that the gentlemen’s agreement has been in effect in the district for some time, that the election was properly conducted pursuant to Education Law "2002(1), that respondent board is not required to use absentee ballots pursuant to Education Law "2018-a, that petitioner has failed to offer any evidence that the rights of district voters were compromised, that the petition fails to state a claim upon which relief may be granted, that petitioner fails to join necessary parties, i.e., Dennis Luce, and that petitioner lacks standing to bring this action since he has failed to establish any personal damage or injury to his rights, or that he is directly aggrieved by respondents’ action.

Before reaching the merits, I will address respondent White’s procedural arguments. Although respondent claims that petitioner lacks standing, petitioner is a district resident. As such, he may bring an appeal as a citizen and qualified voter of the district (Appeal of Cappa, 36 Ed Dept Rep 278; Appeal of Waitkins, 26 id. 263). Petitioner’s status as a district resident is sufficient to maintain this appeal with regard to the manner in which respondent board conducted the annual meeting and election (Appeal of Waitkins, supra, at 263). I also find without merit respondent White’s assertion that the petition fails to state a claim upon which relief may be granted.

Respondent White also contends that petitioner fails to join a necessary party to this appeal. The Commissioner’s regulation [8 NYCRR 275.8(d)]requires:

Disputed elections. If an appeal involves the validity of a school district meeting or election, or the eligibility of a district officer, a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent. In such case, except where the eligibility of a district officer is involved, any qualified voter may serve and file an answer in such appeal whether or not the trustee or board of trustees or board of education serves and files an answer.

As petitioner points out, the regulation does not require that a petition join the unsuccessful candidate, only that an appeal must join the person whose right to hold office is disputed. Therefore, I decline to dismiss the appeal on that basis.

To overturn an election, petitioner must prove improper conduct on the part of respondent, such as a violation of Education Law or Commissioner's regulations (Appeal of DiMicelli, 28 Ed Dept Rep 327, Appeal of Amoia, 28 id. 150). Petitioner must also 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 he seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163).

Petitioner objects to the brief timeframe after the annual meeting in which voters were permitted to cast their ballots for the school board candidate. Although petitioner takes issue with the method employed by respondent board, it is permissible under Education Law "2002(1):

Except as hereinafter provided the annual meeting of each school district shall be held on the first Tuesday of May in each year, and, unless the hour and place thereof shall have been fixed by a vote of a previous district meeting, the same shall be held in the schoolhouse at seven-thirty o’clock in the evening.

Petitioner presents statements from a number of district residents who claim that they were prevented from voting due to the abbreviated timeframe for voting provided at the annual meeting. However, this method of conducting an election is proper (Matter of Zimmerman and Woods, 1 Ed Dept Rep 161). As the Commissioner noted in Zimmerman, "it is the duty of the individual voter to be present and vote at the time and place fixed for an annual meeting." Although petitioner presents several statements from residents of the district that they were inconvenienced by the limited time to vote, especially from families where one individual voted which left the other household member unable to vote, there is no allegation that the annual meeting was not properly noticed. The record indicates that respondent board complied with the law with respect to its annual meeting and subsequent voting.

Petitioner also alleges that the district failed to provide absentee ballots in this election. Education Law "2018-a permits the use of absentee ballots, but the use of such ballots is left to the discretion of the board of education (Appeal of Cochran, et al., 35 Ed Dept Rep 555; Appeal of Martin, 25 id. 446). Thus, petitioner’s objection to the district’s failure to use absentee ballots is without merit.

However, petitioner presents a compelling argument that respondent board’s issuance of a newsletter that discussed the "gentlemen’s agreement," coupled with the public statements of the superintendent, biased voters in favor of respondent White. I note that the "gentlemen’s agreement", as petitioner argues, has no legal force and effect, and in fact, candidates residing in any part of the district may be elected to any open seat. While respondent board may have followed this "gentleman's agreement" for some time, perhaps attempting to create informal election districts in the school district, the district must be formally divided into election districts, provided the requirements of Education Law "2017 can be met, if the district believes that geographic representation is necessary. Such a division would accomplish the goal of proportionate representation of the various rural communities that respondent seeks.

While petitioner has shown bias, he has not shown that respondents' actions probably affected the outcome of the election. The burden of proof in an appeal to the Commissioner rests with the petitioner (8 NYCRR 275.10; Appeal of Rodriguez, 31 Ed Dept Rep 471; Appeal of Osterman, 30 id. 290; Appeal of Negrin, 29 id. 484). To invalidate the results of a school district election, petitioner must establish not only that an irregularity occurred, but also that the irregularity probably affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., supra; Appeal of Santicola, 36 Ed Dept Rep 416; Appeal of Loriz, 35 id. 231; Appeal of Hable, 30 id. 73; Appeal of Hable, 30 id. 328). In Appeal of Rodriguez, supra, petitioner alleged that Hispanic voters were denied the right to vote in an election that was decided by 38 votes. Petitioner submitted 39 valid affidavits from district voters indicating that although they were registered to vote, they were not permitted to vote in the election. Since petitioner had met his burden of showing an election irregularity, and since he supplied a sufficient number of affidavits to demonstrate that the outcome of the election was affected, the election in that case was properly overturned.

Petitioner argues that his burden of proof in this matter involves the canvassing of each individual who voted in the June 10th election, which is an impossible standard to meet. However, as discussed above, the standard required in appeals involving school district elections is such that petitioner need only have submitted four affidavits from voters who voted in the June election who were improperly influenced by respondent’s publication of the gentlemen’s agreement and who would not have voted for respondent White but for the misleading information provided in the district newsletter. Since petitioner fails to provide such proof, I am constrained to dismiss this appeal and cannot grant the relief petitioner seeks.

However, my review of the record in this case -- respondent board’s publication of the newsletter discussing the "gentlemen’s agreement," listing the residence of each candidate and the public statements of the superintendent-- leads me to conclude that respondent engaged in improper electioneering. Respondent board’s use of public funds to convey information of the "gentlemen’s agreement" that clearly favored one candidate over the other was improper. Respondent’s disclaimer at the end of the article that "a gentlemen’s agreement is, of course, only good for as long as the general populous [sic] is willing to honor it" does not negate the partiality of the article itself or the impact of the entire document.

As the Court of Appeals noted in Phillips v. Maurer, 67 NY2d 672 at 674 citing Stern v. Kramarsky, 84 Misc.2d 447, district funds may not be used to convey "favoritism, partisanship, partiality, approval or disapproval…of any issue, worthy as it may be." However, a violation of the Phillips standard does not by itself warrant overturning an election. In this case, respondent board used the district newsletter to publish an agreement that had no basis in law, and that had the effect of favoring one candidate over another. These actions were inappropriate and respondent is admonished to refrain from such conduct in its future elections.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent refrain from the future distribution of any information pertaining to the purported "gentlemen’s agreement" in connection with its elections.

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