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Decision No. 14,100

Appeal of SUE H. TUDOR from action of the Board of Education of the Garrison Union Free School District relating to a special district meeting.

Decision No. 14,100

(March 30, 1999)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, James E. Girvin and Kathy Ann Wolverton, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the results of a special district meeting which approved a proposition authorizing the construction and financing of a school building project in the Garrison Union Free School District. The appeal must be dismissed.

At a June 18, 1998 meeting, the Board of Education of the Garrison Union Free School District ("respondent") approved a building project recommended by its Building Committee ("the Committee"). Respondent scheduled a referendum on the school reconstruction and renovation project for October 20, 1998.

Prior to the referendum, the district's Parent-Teacher Association ("the PTA") held a series of public "coffee gatherings" to discuss the proposed project. One such gathering occurred on October 8, 1998, at a residential drug treatment facility. Children of the residents of this facility attend school in the district. At this meeting, a member of respondent board (who served as chair of the Committee) and a member of the PTA made a presentation regarding the building project. In addition to the presentation, a videotape and accompanying text produced by the Committee and written materials provided by the PTA were made available.

On October 17, 1998, two members of respondent (one of whom served as chair of the Committee) and a member of the PTA made a presentation at a religious institution to an audience of nuns. The nuns who reside at this institution are residents of the district. This presentation was substantially similar to the presentation made at the drug rehabilitation facility. Several additional handouts were made available at this presentation.

On October 20, 1998, the referendum was held in the school gymnasium, during which the PTA conducted an "exit poll." The voters of the district approved the referendum by a vote of 554 in favor, 479 against. This appeal ensued.

Petitioner, a resident of the district, contends that the vote should be invalidated because respondent engaged in several impermissible acts. Specifically, petitioner claims that respondent twice improperly solicited votes; that voters were denied free access to the polling site as a result of the exit poll; that poll watchers were prevented from performing their jobs; that election material was inappropriately left on the "voting table"; and that improper electioneering occurred within one hundred feet of the voting site. Petitioner does not offer any affidavits, exhibits, or other documents to support her allegations. In addition to her request that I set aside the results of the referendum, petitioner seeks an acknowledgement that respondent "has violated Board of Education laws."

Respondent maintains that petitioner's appeal must be dismissed on procedural and factual grounds. Specifically, respondent contends that petitioner: fails to state a claim upon which relief may be granted; fails to properly plead a class action; fails to meet the requirements for an affidavit of service; and fails to demonstrate that respondent acted improperly with regard to the solicitation of votes or the conduct of the referendum. Finally, respondent contends that petitioner has failed to prove that any of the alleged improper activities affected the outcome of the election.

In response, respondent submits affidavits from the chief election inspector for respondent, the president of respondent, a member of respondent, the president of the PTA, a member of the PTA, the district clerk, and the interim superintendent of schools.

Before addressing the merits, I will address petitioner's request to treat this matter as a class appeal. Petitioner seeks to bring this appeal "on behalf of the Garrison School District community and taxpayers," which would include all members of respondent, since they are, by law, residents and taxpayers of the district. A class appeal is permitted "... only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class..." (8 NYCRR "275.2(a)). The president and another member of respondent board submitted affidavits in opposition to the petition. As respondents, they clearly do not wish to be included in the class. Similarly, it can be assumed that the two members of the PTA and respondent's chief election inspector, all of whom submitted affidavits in opposition to the petition, and all of whom are district residents, do not wish to be included in the class. Accordingly, petitioner has failed to show that all questions of fact and law would be common to all members of the class (Appeal of Donnelly, 33 Ed Dept Rep 362). Class status is, therefore, denied.

In her reply, petitioner, for the first time, provides some details of the alleged misconduct. However, the reply presents new facts and allegations not previously raised in the petition (with the sole exception of paragraph 11 of the reply, which addresses one of respondent's affirmative defenses). The purpose of a reply is to respond to material or affirmative defenses set forth in the answer, and it may not be used to buttress allegations in the petition or to add assertions or exhibits that should have been included in the petition (8 NYCRR ""275.3 and 275.14; Appeal of Rampello, supra; Appeal of Akshar 35 Ed Dept Rep 424). Accordingly, while I have reviewed petitioner's reply, I have not considered those portions that contain new allegations and assertions that were not originally contained in the petition.

The appeal must be dismissed on the merits. In an appeal to the Commissioner, the petitioner bears the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal ofShufelt, 38 Ed Dept Rep 274; Appeal of Rampello, 37 id. 153). Petitioner requests that I void the results of the special district meeting. To invalidate the results of a school district election, a petitioner must establish not only that irregularities occurred, but also that the irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Meyer, et al., 38 Ed Dept Rept 285; Appeal of Santicola, 36 id. 416), were so persuasive that they vitiated the electoral process (Appeal of Roberts, 33 Ed Dept Rep 601; Matter of Gilbert, 20 id. 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). 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 Goldman, 35 Ed Dept Rep 126; Appeal of Roberts, supra). Where a vote is on a capital project and the financing thereof, the proof must contain affidavits or statements from individuals who voted in favor of the proposition that their vote would have been otherwise but for the alleged misconduct (Appeal of Meyer, et al., supra; Appeal of Crook, 35 Ed Dept Rep 546; Appeal of Mandell, 35 id. 538). Petitioner provides no such affidavits or statements.

Petitioner provides absolutely no affidavits, exhibits, or other documents with her petition to support her allegations that respondent improperly solicited votes prior to the referendum or engaged in impermissible conduct at the polling site on the day of the referendum. Rather, petitioner merely asserts that respondent committed a variety of improper acts, and that those acts should serve as the basis for invalidating the results of the referendum.

In two of the affidavits provided by respondent, however, it was admitted that copies of an informational brochure produced by the district were placed on a table behind the registration table. According to the affidavits, these brochures contained only factual material relating to the referendum, and were removed from the table by 9:00 a.m. There is no evidence that any voters saw them. Furthermore, a board of education has a right to present informational material concerning propositions to be considered by the electorate (Appeal of Rampello, supra).

In her affidavit, the president of the PTA noted that she saw one or two people in the vicinity of the voting site wearing "Build for Children" buttons and/or tee shirts. However, she has no knowledge of whether these individuals were within the zone within which electioneering is prohibited. Furthermore, in six of the affidavits submitted by respondent, eyewitnesses aver that no improper electioneering occurred at the polling site.

With regard to petitioner's remaining claims, the affidavits submitted by respondent are replete with statements from eyewitnesses that no improper solicitation of votes occurred; that poll watchers were not hampered in their efforts to monitor the election (and were, in fact, accommodated by respondent); and that the exit poll in no way hindered access to the polling site. In sum, the record fails to establish that improper activity occurred or that anyone who voted for the construction proposition would have voted differently but for the alleged misconduct. Accordingly, there is no basis to overturn the election.

In view of the foregoing disposition, I will not address the other procedural issue raised by respondent.

THE APPEAL IS DISMISSED.

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