Decision No. 13,915

(April 10, 1998)

Kevin A. Seaman, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner, a trustee of the Board of Education of the Central Islip Union Free School District at the time of this appeal, challenges respondents' actions in the conduct of the May 21, 1996 school district election at which the district voters elected three trustees, passed a transportation proposal, and defeated the budget by 52 votes. The appeal must be dismissed.

Petitioner alleges that widespread election irregularities and possible fraud took place both before and during the May 21, 1996 election. She contends that a conspiracy to commit election fraud began on or about April 30, 1996, when the Civil Service Employees Association (CSEA) improperly acquired a confidential list of names and addresses of 32 graduating seniors and mailed those students a letter urging support of three candidates for election. Petitioner also claims that: the PTA was bullied at a board of education meeting; confusing literature was disseminated to the voters; a teacher at the alternative high school arranged carpool rides for students to vote for specific candidates; and district employees used district vehicles to hang campaign posters. During the election itself, petitioner asserts that: over 300 walk-in voters registered and voted without proper identification; poll lists did not adequately reflect the numbers of votes cast; absentee ballots were counted without designated poll watchers; signatures on registration cards did not match and had inaccurate voter histories; non-registered voters voted; a challenged voter was allowed to vote; some people voted twice; people were allowed to vote at machines other than the ones where they signed in; district workers who do not reside in the district were allowed to vote; and ballot cards were not always collected. Petitioner, on behalf of the residents of the district, requests that I invalidate the district clerk’s certification of the election returns and investigate and hold a hearing.

Respondents contend that the appeal must be dismissed because petitioner lacks standing, the petition fails to state a claim and fails to join necessary parties. Respondents also assert that the election was conducted without any substantive irregularities. Respondents maintain that voting machines did not malfunction, the absentee ballots were counted in front of the district clerk as well as six election inspectors, and only eligible voters voted. I denied petitioner’s request for interim relief on July 24, 1996.

I must first address several procedural issues. In her reply, petitioner raises several new allegations. She also requests that the Commissioner grant her the power to: direct the issuance of administrative subpoenas; engage in discovery; and grant limited immunity to witnesses. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR "275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been included in the petition (Appeal of Kushner, 36 Ed Dept Rep 261). Accordingly, I will not consider the material belatedly added by petitioner in her reply. Moreover, the jurisdiction of the Commissioner in an appeal brought pursuant to Education Law "310 is appellate in nature, and does not provide for evidentiary hearings or investigations or the authority to confer upon petitioner the power she seeks (Application of Bowen, 17 AD2d 12, aff’d 13 NY2d 663).

As a threshold matter, I find that petitioner has standing to bring this appeal as a resident and taxpayer of the district. However, while petitioner may appeal on her own behalf, she lacks standing to assert the rights of others (Appeals of Cappa, 36 Ed Dept Rep 278; Appeal of Ulcena, 33 id. 328). To the extent petitioner appeals on behalf of district residents, those claims are dismissed.

Petitioner challenges the conduct of the election and requests that I invalidate the election results. Section 275.8(d) of the Commissioner’s regulations provides, in pertinent part:

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 Krantz, 37 Ed Dept Rep 257; Appeal of Williams, et al., 36 id. 270; Appeal of Karliner, 36 id. 30; Appeal of Garard, 36 id. 15). In the election, seven candidates ran at large for three seats. Although petitioner does not specifically challenge the election of the three trustees, she requests that I invalidate the election results. To do so would clearly adversely affect the rights of the winners of the election, Daniel Devine, Barbara Goldstein and Helen Brannon. Therefore, those elected members are necessary parties, and petitioner’s failure to join them requires the dismissal of the appeal.

It is well settled that the Commissioner will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Lawson, 36 Ed Dept Rep 450; Appeal of McCart, et al., 36 id. 363; Appeal of Ryan, et al., 35 id. 188). The budget contested in the instant appeal was defeated at the May 21, 1996 election. Respondent subsequently presented a new budget proposition for the voters’ consideration at a special election conducted on September 25, 1996. That budget was approved by a vote of 825 to 289. Accordingly, to the extent petitioner challenges the budget vote of May 21, 1996, the appeal must also be dismissed as moot.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Analysis of alleged election irregularities requires a two-part inquiry. Both prongs of this analysis must be satisfied for the Commissioner to disturb the outcome of an election (Appeal of Santicola, 36 Ed Dept Rep 416; Appeal of Kushner, supra; Appeal of Goldman, 35 Ed Dept Rep 126). First, petitioner must prove improper conduct on the part of the 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). Second, 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 664, 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 an 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).

Petitioner alleges that there is a total of 181 disputed votes, many more than the 52-vote difference by which the budget failed. She alleges that one voting machine had 48 votes randomly allocated by the district clerk; absentee ballots were incorrectly tallied by one vote; two votes should be discounted because they had the same voter number; 38 of the 300 walk-in votes do not appear on either the County Board of Elections list or the District's Registered Voter list; 7 improper votes were cast; and that 12 non-resident district workers voted. She also alleges that 32 students were improperly influenced to vote by the CSEA letter.

Petitioner has failed to meet her burden of proof. She has failed to demonstrate that the irregularities occurred, or, if they occurred, that they affected the outcome of the election. First, petitioner contends that some votes (300 or 38) were cast by individuals not registered with the school district. Education Law "2014(1) allows union free school districts to establish a system of personal registration for voters in district elections. Section 2014(2) specifically requires district officials to establish and maintain a list of district residents who have properly registered to vote prior to a district election. Additionally, residents who have registered to vote with the county board of elections and have voted in a general election at least once within the last four calendar years are entitled by Election Law "5-612(2) to vote in school district elections (Appeal of Prosky, 34 Ed Dept Rep 202; Appeal of Damilitas, 33 id. 465; Appeal of Como, et al., supra; Appeal of Shortell and Hickmann, 27 Ed Dept Rep 190). Respondents concede that some individuals presented themselves to vote at the May 21, 1996 election without having previously registered with the district or the Suffolk County Board of Elections. However, respondents argue that while those individuals were advised that they could register for future district elections, they were not permitted to vote on May 21, 1996. Respondents assert that all those who actually voted in the May 21st election had either registered with the school district or the Suffolk County Board of Elections. Petitioner has not presented any evidence to the contrary. Furthermore, respondents assert that a telephone hotline was established to verify the registration status of individuals who may have registered with the County on or before May 21, 1996. Thus, respondents maintain that the so-called walk-in voters did not register on the day of the election, but had previously registered through the Suffolk County Board of Elections in lieu of registering with the school district. Petitioner has failed to present any evidence that any of those voters were unqualified and unregistered to vote. Petitioner's allegation is therefore without merit, because when an individual is otherwise eligible to vote in a school district election, the failure to register with the school district is of no consequence.

Moreover, I agree with respondents that petitioner is required to challenge unqualified voters prior to or at the time such voters present themselves at the polls to vote in accordance with Education Law ""2606(8) and 2609(5) (Appeal of Fraser-McBride, et al., 36 Ed Dept Rep 488). A person who has the right to challenge a voter and permits him to vote without challenge, is not allowed to object to the proceeding of the meeting because such unqualified person participated (Appeal of Fraser-McBride, et al., supra; Appeal of Horton 35 Ed Dept Rep 168).

Second, of the 48 votes on the voting machine which petitioner alleges were lost, she has failed to provide any evidence substantiating that claim, whereas respondents state that those votes were accounted for. The voting machine log and recanvass sheet from Election Machine Service Co. Inc. indicates that for proposition #2 (transportation) the lockout fell off but the counters showed 18 yes votes and 30 no votes, thus accounting for the 48 votes. Even if 48 votes were discounted, that would not be enough to overturn the budget vote, which was defeated by 52 votes. Moreover, any alleged irregularity appears to concern not the budget vote, but the transportation proposition, which passed by 189 votes (1037 to 848), in which case 48 votes would not have changed the outcome of the election.

Third, petitioner has presented insufficient evidence regarding the 1 allegedly miscounted absentee ballot, the 12 votes allegedly cast by non-resident district workers or the 7 votes allegedly improperly cast. My review of the record indicates that at most, there may be an instance where the date on the registration card is incorrect and an instance where the registrant did not sign the card. Regarding the voter who allegedly voted twice, respondent has sufficiently explained the confusion between the father and son with the same name and their voter cards.

Regarding the 32 students who were contacted by CSEA, the district employee who provided the lists of seniors’ names and addresses was reprimanded by the superintendent for violating the Federal Educational Rights and Privacy Act ("FERPA," 20 U.S.C. "1232g). It is well settled that alleged violations of FERPA are solely enforceable by the United States Secretary of Education, and not the Commissioner of Education (Appeal of Winchell, 35 Ed Dept Rep 221). The letter by CSEA was prepared and sent by the local CSEA unit over which neither the district nor the board of education had control. Moreover, petitioner has failed to prove that those students actually voted or that the letter improperly influenced their vote.

I have considered petitioner's other claims and find them without merit. Accordingly, petitioner has failed to meet her burden of proof that the irregularities occurred, or, if they occurred, that they affected the outcome of the election. It is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Krantz, supra; Appeal of Kushner, supra; Appeal of Young, 26 Ed Dept Rep 272). Absent such proof, I will not set aside the election (Appeal of Kushner, supra; Appeal of Ben-Reuben, et al., 33 Ed Dept Rep 299).

THE APPEAL IS DISMISSED.

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