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Decision No. 14,095

Appeal of WILLIAM NEUFANG from action of the Board of Education of the Baldwinsville Central School District regarding election irregularities.

Decision No. 14,095

(March 26, 1999)

O'Hara & O'Connell, P.C., attorneys for respondent, Dennis G. O'Hara, Esq., of counsel

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for re-election to the Board of Education of the Baldwinsville Central School District ("respondent"), challenges the results of the May 18, 1998 school board election. The appeal must be dismissed.

On May 18, 1998, respondent held an election on the 1998-99 budget and to fill three seats on respondent board. Petitioner was one of four candidates vying for the three seats.

At some point prior to the election, campaign flyers for board candidate Kristin Riley were placed in teacher mailboxes at one of respondent's five elementary schools. At a May 12, 1998 public hearing on the proposed budget, respondent's superintendent introduced members of the then current board, including petitioner, as board members. He then introduced Ms. Riley as a candidate for the board, without stating that petitioner and two other board members were also candidates. On the day of the election, petitioner's name was misspelled as "Neugang" on one of the six voting machines used. The other three candidates were elected, with only ten votes separating petitioner from Ms. Riley, the candidate with the third highest vote-total. This appeal ensued. Petitioner's request for interim relief was denied on June 25, 1998.

Petitioner contends that the distribution of flyers violated respondent's advertising policy and the superintendent's introduction of Ms. Riley at the May 12 meeting appeared to be an endorsement. He argues that these events, combined with the misspelling of his name, caused his defeat. Petitioner requests a recount of the votes and a new election if necessary.

Respondent contends that the flyers were distributed without respondent's knowledge or consent and denies that the superintendent's introduction at the budget meeting was an implied endorsement. Respondent argues that the misspelling of petitioner's name on the ballot did not affect the vote totals and there were no reports of voter confusion caused by the misspelling. Respondent asks that the appeal be dismissed because petitioner failed to join Ms. Riley or the other two successful candidates as necessary parties to this appeal.

The appeal must be dismissed for failure to join the successful candidates as respondents. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Karliner, 36 Ed Dept Rep 30; Appeal of Garard, 36 id. 15). When an appeal involves the validity of an election, each successful candidate whose right to hold office is disputed must be joined as a respondent (8 NYCRR "275.8[d]; Appeal of Heller, 38 Ed Dept Rep 335; Appeal of Gravink, 37 id. 393). In the instant proceeding, four candidates ran for three board seats. The relief petitioner seeks -- a recount and a new election -- could adversely affect the rights of the successful candidates. Therefore, they are necessary parties, and petitioner's failure to join them requires the dismissal of this appeal.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. 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 Heller, supra;Appeal of Chechek, 37 Ed Dept Rep 624). 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, aff'd 26 NY2d 709; Davis v. Commissioner of Education, 189 AD2d 1046; Appeal of Chechek, supra; 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 6407). 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 he seeks relief (8 NYCRR "275.10; Appeal of Pickreign, 28 Ed Dept Rep 163).

Petitioner has not met this burden. He has not established that respondent violated the Education Law or Commissioner's regulations. Nor has he established that any of the acts that he complains of actually affected the outcome of the election. Petitioner does not provide any evidence to demonstrate that respondent had knowledge of or was responsible for placing candidate flyers in teacher mailboxes. Further, I note that respondent's superintendent issued a memorandum, albeit a month after the election, reminding district staff of the district's outstanding policy prohibiting the use of district facilities for the distribution of campaign materials. I find petitioner's allegation that the superintendent's introduction of Ms. Riley as a candidate for respondent board amounted to an implied or perceived endorsement to be speculative and unsubstantiated. Likewise, I find that the slight misspelling of petitioner's name on one of six voting machines was unlikely to confuse voters. In sum, based on the record before me, there is no evidence that there were voting irregularities that affected the outcome of the election. Accordingly, I find no basis to order a recount or to overturn the election.

THE APPEAL IS DISMISSED.

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