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Decision No. 14,111

Appeal of THOMAS DIORIO, from action of the Board of Education of the Wappingers Central School District, and Kurt Drexler, Heidi Resk, and Ved Shravah regarding the conduct of a school district election.

Decision No. 14,111

(April 22, 1999)

Michael K. Lambert, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner challenges the results of an election held on May 19, 1998 by the Board of Education of the Wappingers Central School District ("respondent board"). The appeal must be dismissed.

On May 19, 1998, respondent board conducted the annual school district election to permit district residents to vote on the 1998-99 budget and two propositions, and to fill three seats on respondent board. The voters approved the budget and propositions and elected respondents Kurt Drexler, Heidi Resk and Ved Shravah to the board. The final vote tally was:

Budget – 4,707 yes, 3,816 no

Proposition #1 – 5,434 yes, 2,988 no

Proposition #2 – 4,965 yes, 3,460 no

Board Candidates: Shravah 4,863

Resk 4,498

Drexler 4,120

Unger 3,966

Clay 3,929

Diorio 3,691

This appeal ensued. Petitioner's request for interim relief was denied on June 25, 1998.

Petitioner contends that the election results should be set aside due to a number of election irregularities. First, he alleges that the Chairman of Election District Number 1 failed to sign a certification that all election procedures were duly observed. Second, he alleges that the protective and public counters on voting machines 137801, 154965, and 164709 were never recorded. Third, petitioner claims that the results from one of the district’s six polling places (Election District Number 5) contained a serious discrepancy. Petitioner maintains that the vote total of 1,236 on the budget in District Number 5 exceeds the number of signatures, absentee ballots, and same day registration signatures by 67 votes. Petitioner calculates that this amounts to a variance of 5.4%. He estimates that if a similar variation occurred in the other five election districts, which generated a total of more than 7,000 votes, it would result in a voter error of 460 votes.

Respondents admit that the chairperson of District Number 1 failed to sign the certification on May 19. They contend, however, that the failure to do so was inadvertent and all proper procedures were followed. Respondents submit a certification signed by the chairperson of District Number 1 dated June 19, 1998 and an affidavit from the chairperson stating that her failure to sign was inadvertent and all proper procedures were followed.

Respondents also admit that the protective counters on three voting machines were not recorded by the election inspectors, but maintain that this omission was inadvertent. Respondents submit an affidavit from five of the six election inspectors from District Number 1 stating that their failure to record the protective counters was an oversight. The five election inspectors further state that on June 19, 1998, they went to the garage where the voting machines had been stored. At that time, after ascertaining from the voting machine custodian that the machines were in the same condition as when he received them back from the school district, they read the results and recorded them. Respondents also submit an affidavit from the voting machine custodian attesting to the condition of the machines.

Respondents also dispute petitioner's claim of a 5.4% variance in election results for District Number 5. They submit an affidavit from the district clerk, Susan Phillips, stating that at no time did petitioner request to view signature cards or any other documentation relative to the election. On June 17, 1998 she determined that 1,245 individuals voted at Election District Number 5, as follows: 1,186 voters, as determined by registration cards; 4 voters, as reflected by affidavit ballots; and 55 voters, registered with the county but not with the school district. The clerk speculates that the difference in her total of 1,245 and petitioner’s total of 1,236 (the total number of votes on the budget according to the election results), is attributable to the fact that not everyone who voted at that location actually voted for all items on the ballot.

Respondents further assert as an affirmative defense that petitioner has failed to present sufficient evidence to overcome the presumption of regularity in the conduct of school elections. Respondents also contend that petitioner failed to serve respondent Shravah with a copy of the petition.

Initially, I will address the procedural issue raised by respondents. Respondents contend that Ved Shravah was not properly served with the petition. The record includes an affidavit of service indicating that a person over eighteen served a copy of the petition on Mr. Shravah’s wife at his residence. The Commissioner's regulations permit service to be made at a respondent’s residence on a person of suitable age and discretion if the respondent cannot be found upon diligent search (8 NYCRR 275.8[a]). In an addendum to the affidavit of service of the petition upon respondent Shravah, the person who served the petition alleges that three prior attempts were made to serve respondent Shravah personally before he effected service on Mrs. Shravah. In addition, he attests that Mrs. Shravah stated that her husband was away on business for two to three weeks. Accordingly, under these circumstances I cannot find service to be improper.

The appeal, however, must 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 the Education Law or Commissioner's regulations (Appeal of Heller, 38 Ed Dept Rep 335; Appeal of Chechek, 37 id. 624). Petitioner must also establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Heller, supra; Appeal of Harris, 35 Ed Dept Rep 478), were so pervasive in nature as to vitiate the electoral process (Appeal of Heller, supra; Appeal of Harris, 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 (Appeal of Heller, supra; Appeal of Harris, supra; Matter of Levine, 24 Ed Dept Rep 172, aff'd sub nom Capobianco v. Ambach, 112 AD2d 640). To warrant setting aside an election, the improprieties alleged must be substantial and not merely technical in nature (Appeal of Harris, supra; Appeal of Taylor, 31 Ed Dept Rep 46). Petitioner has the burden of establishing all the facts upon which he seeks relief (8 NYCRR "275.10, Appeal of Harris, supra; Appeal of Pickreign, 28 Ed Dept Rep. 163).

I find that petitioner has failed to meet his burden of proof. Respondents admit the chairperson of Election District Number 1, Anna Marie Pinto, did not immediately certify that all election procedures were observed. However, there is no legal requirement for such a certification. Education Law "2034(7)(b) requires election inspectors to sign a written report of the results of the ballot. There is no allegation before me that this was not done. Despite there being no certification requirement, once the lack of certification was brought to respondent board's attention, Ms. Pinto signed the certification. She also executed an affidavit explaining that her failure to sign was inadvertent, and that all of the procedures referenced in the certification were followed during the course of the election. Petitioner offers no evidence that this technical omission in any way affected the outcome of the election. Accordingly, there is no basis to overturn the election on this ground (Appeal of Singer, 34 Ed Dept Rep 355).

Similarly, I find no basis to overturn the election for failure to record the protective and public counters in District Number 1. Pursuant to Education Law "2035, the inspectors must examine and determine that the counters are set at zero before a machine is used, but there is no requirement that the inspectors record the counters at the close of the polls. Education Law "2034(7)(b) does require the inspectors to make a written report of the results of the ballot to the chief inspector of the district and sign it. The chief inspector must then file the report with the district clerk. It is not clear from the record whether such a report was submitted, however, the record does contain a final tally signed by the chief inspector and three inspectors. Further, respondents demonstrate, through sworn affidavits from five of the six election inspectors for District Number 1, that the machines were in the same condition on June 19, 1998 as when the inspectors looked at them at the conclusion of the election. The inspectors found that the seals they had affixed to the machines at the conclusion of the election were still in place. The inspectors read the results from the machines and attested to the results. Respondents also submitted an affidavit from the voting machine custodian establishing that the machines had been locked away since the May 19, 1998 election. Therefore, based on the record before me, there is insufficient evidence that the failure to record the counters in any way affected the outcome of the election.

I further find petitioner has failed to demonstrate discrepancies in the number of votes cast sufficient to warrant my overturning the election. The district clerk reviewed the election results for Election District Number 5 and found that although the election results indicated 1,236 people voted on the budget, 1,245 voters were registered in that district. Of the 1,245 registered voters, 1,186 were registered with the district; 4 voted by affidavit ballot; and 55 were registered with the county, but not with the school district at the time of the election. These 55 voters were entitled to vote in the election (Appeal of Greening, 35 Ed Dept Rep 122), though one would not find their registration cards without examining the signature cards kept by the clerk. Petitioner claims the 1,236 votes cast exceeded the number of signatures, absentee ballots, and same day registration signatures by 67 votes, yet he presents no evidence for the origin of these numbers. Furthermore, according to the district clerk, petitioner did not examine any signature cards or other election documentation. Therefore, he has no factual basis to support his claim of impropriety. Although it is not entirely clear, the clerk speculates the difference between 1,236 votes cast on the budget and 1,245 registered voters is attributable to the fact that not everyone who voted at District Number 5 actually voted for all of the items on the ballot. Additionally, the budget passed by a margin of 324 votes in District Number 5. Thus, there is no evidence that a difference of 67 votes (as claimed by petitioner) would have affected the outcome of the election. Petitioner has presented insufficient evidence of a 5.4% error rate in District Number 5, and no evidence of district-wide errors.

In sum, there is nothing in the record before me to demonstrate that any irregularities affected the results of the election. Accordingly, there is no basis for overturning this election.

THE APPEAL IS DISMISSED.

END OF FILE