Decision No. 13,943

(May 18, 1998)

MILLS, Commissioner.--Petitioner challenges a budget vote held on August 13, 1997. The appeal must be dismissed.

On May 14, 1997, the Board of Education of the Wappingers Central School District ("respondent") held its annual meeting, election and budget vote for the 1997-1998 school year. The May budget was comprised of all proposed district expenditures, including funds for sports, co-curricular activities and field trips. The voters rejected the budget. Apparently, respondent adopted a contingency budget since the whole budget was not resubmitted for a vote. However, since the contingency budget did not include funding for co-curricular activities, intramural sports, interscholastic sports and field trips, on June 25, 1997, respondent submitted a proposition for $1,088,853 to fund those activities. That proposition was defeated by a vote of 3261 to 3251. On August 13, 1997, respondent submitted a second proposition for $1,030,280 to fund those activities. This time, the proposition passed. Petitioner served her petition and a request for interim relief on August 28, 1997, claiming that: the proposition should not have been offered for a revote on August 13, improper electioneering had taken place, and several violations of the Education Law had occurred during the conduct of the election. She requests that: I stay the disbursement of money for the sports budget; invalidate the August 13 vote; and order the district to correct all election abuses and turn future elections over to Dutchess County. I denied petitioner’s request for interim relief on September 16, 1997.

Petitioner asserts that respondent improperly submitted the sports, co-curricular activities and field trips budget for three votes: on May 14, June 25 and August 13. She contends that the June 25 proposition contained virtually the same amount of funds for those purposes as did the May 14 budget, and the August proposition was nearly identical to the June proposition. She claims that respondent’s decision to resubmit the budget vote in August was unwarranted, arbitrary and capricious, outside the scope of respondent’s authority and a clear abuse of respondent’s power to call a special district meeting. Additionally, petitioner asserts that respondent’s superintendent improperly suggested collecting signatures for a citizens’ petition calling for respondent to resubmit the proposition.

Petitioner also contends that several voting irregularities occurred during the August 13 vote. She challenges the validity of the election itself, the number of absentee ballots cast, the votes of those who registered on the day of the election and the votes of those who registered following the June 25 vote. She claims that at five polling places, no list of those to whom absentee ballots had been issued was conspicuously posted, and the absentee ballots were opened and counted, and their signatures compared, before the polls closed. She also claims that at all six polling places: the ballots were read out loud or sorted without having been deposited in proper ballot boxes; ballot boxes were unavailable; the list of 731 absentee voters was haphazardly maintained making it unable to be inspected; 799 absentee votes were cast even though only 731 absentee ballots were issued; people were allowed to register and vote on election day without verification of residency; respondent failed to avail itself of current county voting lists; and the 189 voters who registered after the June 25 vote were allowed to register without providing complete registration information. Petitioner also maintains that poll watchers were prevented from observing and verifying the final numbers on the voting machines, and some poll inspectors were hostile to observers and encouraged voters to vote for the proposition.

Petitioner further alleges that respondent’s Communication Task Force, formed to develop a plan for disseminating information about the August proposition, was biased and failed to fulfill its mission. Petitioner asserts that improper electioneering occurred prior to the vote and respondent failed to follow procedures in Education Law "2025 regarding district meetings.

Respondent maintains that the decision to resubmit the proposition was not arbitrary, capricious or an abuse of authority. Respondent contends that it rightfully exercised its discretion to conduct the August vote, especially since the June vote failed to pass by only 10 votes, and 4,000 voters signed a petition requesting that the proposition be offered again. Respondent denies that the superintendent instigated the collection of signatures for the petition, and asserts that the petition was voluntarily signed and submitted. With one exception, respondent denies that electioneering took place before the vote. Respondent also denies that any irregularities occurred regarding absentee ballots, registration or during the conduct of the election. Respondent contends that petitioner has failed to meet her burden of proof. Finally, respondent requests costs and legal fees.

I must first address several procedural issues. Petitioner raises several new issues in her reply. In addition, she submits new exhibits and affidavits from seven poll watchers and asks that I accept them in accordance with 8 NYCRR "276.5. 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 to add belatedly assertions that should have been in the petition (Appeal of Cole, et al., 37 Ed Dept Rep 407; Appeal of Rampello, 37 id. 153; Appeal of Lawson, 36 id. 450, Appeal of Brush, 34 id. 273). There is nothing in the affidavits that was unavailable at the time the petition was served. Therefore, while I have reviewed petitioner’s submissions, I have not considered those portions of the reply containing new allegations and exhibits which are not responsive to new material or affirmative defenses set forth in the answer.

Petitioner maintains that the individual members of the board of education are respondents. However, they are not named in the caption. Moreover, the applicable affidavit of service attached to the petition indicates that no individual board members were served; only the district clerk, Susan Phillips, on behalf of the board, was served a copy of the petition and a notice of petition (8 NYCRR 275.8(a)). To be a party to the appeal, the party must be named as a respondent, served with the petition, and afforded a genuine opportunity to respond to the allegations (8 NYCRR 275.11; Appeal of Osterman, 30 Ed Dept Rep 290). It is the notice of petition which alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition. Accordingly, only the board of education, not the individual members of the board, is the respondent in this 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 Schuler, 37 Ed Dept Rep ___, Decision #13915, dated April 10, 1998; Appeal of Lawson, 36 id. 450; Appeal of McCart, et al., 36 id. 363; Appeal of Ryan, et al., 35 id. 188). I denied petitioner’s request for interim relief on September 16, 1997. Accordingly, to the extent that petitioner requests that money for the sports budget not be disbursed, that issue is moot since the money for the sports budget for the 1997-1998 year has already been disbursed and the relief sought cannot be granted (Appeal of Lawson, supra).

Even if that portion of the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Petitioner maintains that respondent acted unlawfully when it held a third vote on the sports, co-curricular activities and field trips budget on August 13 because the voters had already voted on those activities on May 14, and again on June 25. Respondent maintains that the August vote was the second, not the third vote on the sports, co-curricular activities and field trips budget. When the budget was defeated on May 14, respondent apparently determined to adopt a contingency budget. Education Law "2023 provides that, in the absence of voter approval of a budget, a board of education may levy taxes and expend moneys only for teacher salaries and ordinary contingent expenses. While petitioner does not protest the adoption of a contingency budget, she claims that respondent improperly and unlawfully held three votes on the sports and extracurricular budget items.

The Commissioner of Education has repeatedly held that costs associated with interscholastic sports are not ordinary contingency expenses and are not permissible without voter approval (Appeals of Scarrone and Tierney, 35 Ed Dept Rep 443; Appeal of Hebel, 34 id. 319; Appeal of Farrell, 30 id. 81; Matter of Travers, 21 id. 643; Matter of O'Toole, 18 id. 7; Matter of Bd. of Educ., Cleveland Hill UFSD, supra). Nor are costs for field trips that are not an integral component of the curriculum (Appeal of Hebel, 34 Ed Dept Rep 575; Appeal of Hebel, 34 id. 319). Thus, when the budget was defeated in May, respondent was obligated to submit for voter approval a proposition for those activities not included in a contingency budget, if respondent wanted to conduct those activities during the school year. Pursuant to Education Law "2007, a board of education has discretion to call a special district meeting whenever it deems it necessary and proper (Appeal of Hebel, 34 Ed Dept Rep 319; Galloway v. Saletan, 42 Misc 2d 458, aff’d, 20 AD2d 796). Moreover, although the differential was small, the amount of the proposition offered in August was different from that offered in June (Appeal of Hebel, supra).

Petitioner claims that the August vote was the third vote on the sports and cocurricular activities budget, and that it was improper for the respondent to submit the budget for three votes. During the 1997-1998 school year, there was no statutory restriction on the number of times noncontingent expenses could be presented to the voters (see footnote 3 supra). Furthermore, respondent was not required to demonstrate that new factors had arisen after the first vote or cite error, fraud or misunderstanding in connection with the first vote in order to resubmit the same budget for a vote. Petitioner has not met her burden of proving that respondent abused its discretion when it decided to present the extracurricular and sports budget for another vote on August 13.

Petitioner also asserts that several voting irregularities occurred during the August 13 vote and requests that I invalidate the election. To overturn an election, 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). 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 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 challenges the absentee ballots cast in the election. Petitioner asserts that 731 absentee ballots were issued, yet 799 absentee ballots were cast. She accuses respondent of inconsistency, possible fraud and gross negligence. Petitioner’s Exhibit C contains a list of 731 names of those requesting absentee ballots for the August 13 vote. Respondent states that approximately 200 additional absentee ballots were sent to people on the Dutchess County Board of Elections list of permanently disabled voters who were authorized by the county to vote by absentee ballot. Of those, 68 ballots were received. Thus, the total of 799 absentee ballots appears correct. Absent other evidence, petitioner has failed to meet her burden of proving fraud or negligence in the casting of the absentee ballots. Although neither party provided the margin of victory in their papers, a tally of the final canvass reports attached to respondent’s answer indicates that the August 13 proposition passed by 1584 votes, 7235 to 5651. Thus, even if all 799 absentee ballots were invalidated, the outcome of the election would not have been affected.

Petitioner states that in at least five of the six polling places, respondent failed to post lists of absentee voters in conspicuous places during the election as required by Education Law "2018-a(6)(b). Respondent denies the charge. The purpose of posting a list of absentee voters is so that any qualified voter may challenge the acceptance of an absentee voter's ballot. Education Law "2018-a requires that any challenge to the qualifications of a person to whom an absentee ballot has been issued be made in writing before election day or during the election before the close of the polls. Although petitioner challenges all 731 absentee ballots cast because of the alleged discrepancy in the number of votes cast (see above paragraph), she does not specifically challenge any individual absentee voter’s right to cast an absentee ballot. Even if she had, such a challenge in the petition would be well after the closing of the polls and thus untimely. While the alleged irregularity of failing to post the list did not affect the outcome of the election, respondent is nevertheless reminded to comply with the provisions of Education Law "2018-a(6)(b).

Petitioner alleges several additional violations of "2018-a. Respondent admits that absentee ballots were opened and counted at certain polling places before the polls closed and that no ballot boxes were used in violation of "2018-a(10). There is, however, insufficient evidence of any other violations. Moreover, there is no evidence that the admitted technical violations affected the outcome of the election. Nonetheless, respondent is reminded to comply with all the provisions of Education Law "2018-a concerning absentee ballots.

Petitioner further contends that voters who were not on the school district registration list were improperly allowed to vote without verified identification. She claims that the county registration list was stale and that persons no longer living in the district may have voted. Education Law "2014(1) allows 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 Damilatis, 33 id. 465; Appeal of Como, et al., supra; Appeal of Shortell and Hickmann, 27 Ed Dept Rep 190). Respondents assert that the county lists were current, and deny that any ineligible voter voted. Petitioner has failed to present evidence that any voters were unqualified or unregistered to vote. In addition, she fails to specify how many voters allegedly registered on the day of the election. Accordingly, petitioner has not met her burden of proving that any unregistered voters voted, or, that any improperly registered vote affected the outcome of the election. Petitioner has similarly failed to prove that any voters registered after the June 25 election were improperly registered. 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, 37 Ed Dept Rep 257; Appeal of Kushner, 36 id. 261; Appeal of Young, 26 id. 272).

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.

Finally, respondent board's request for attorney's fees and costs for defending this action must be denied. The Commissioner of Education lacks authority to award attorney's fees in an appeal under Education Law "310 (Appeal of Shavrah, et al., 36 Ed Dept Rep 396; Appeal of Loughlin, 35 id. 432; Appeal of Stewart, 34 id. 193; Appeal of Ferguson, 32 id. 494).

THE APPEAL IS DISMISSED.

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