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Decision No. 14,123

Appeal of RICHARD McGRATH from action of the Board of Education of the Huntington Union Free School District relating to a school district election.

Decision No. 14,123

(May 8, 1999)

Lazer, Aptheker, Feldman, Rosella & Yedid, LLP, attorneys for petitioner, Zachary Murdock, Esq., of counsel

Ehrlich, Frazer & Feldman, attorneys for respondent, Laura Ferrugiari, Esq., of counsel

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for election to the Board of Education of the Huntington Union Free School District ("respondent"), challenges the results of the school board election held on May 20, 1997. The appeal must be dismissed.

On May 20, 1997, respondent held an election to select three trustees to the board for three year terms. There were eight candidates for the three seats. The top two candidates received 1630 and 1453 votes, respectively. For the third position, initial voting results indicated that candidate Eunice Marchi had received one more vote than petitioner, 1442 votes to 1441.

After the polls closed, election inspectors reviewed the absentee ballot envelopes to determine whether the envelopes were completed, applications were on file for such ballots, and the individuals named on the envelopes were registered voters, and also to ensure that the individuals did not vote in person during the election. The district clerk initially declared seven absentee ballots invalid. Petitioner questioned the election count and the voting machine and absentee ballot tallies were confirmed, indicating that petitioner lost the election to Ms. Marchi by one vote.

The following day, the district clerk conferred with legal counsel regarding the seven absentee ballots that were not canvassed. Two additional absentee ballots were subsequently determined to be valid and were opened. A meeting was held on or about May 21, 1997 to re-canvass the absentee ballots. Upon counting the two additional absentee ballots, the election was officially ruled as a tie, with 1443 votes each to petitioner and Ms. Marchi. A run-off election was scheduled for June 18, 1997. Petitioner lost the run-off election to Ms. Marchi by a margin of 1013 votes to 1433. This appeal ensued.

Petitioner challenges the district clerk's refusal to canvass the absentee ballots of Helga Phillips and Peter Laffey, from the May 20, 1997 election, on the grounds that the district clerk did not have an application on file for those two voters. The district clerk received an absentee ballot from Ms. Phillips on May 12, 1997 and from Mr. Laffey on May 20, 1997. The two voters assert by affidavit that they completed absentee ballot applications and returned them to the district clerk sealed inside the ballot envelope together with the absentee ballot. Petitioner contends that these two voters properly completed and submitted their applications and ballots in technical compliance with Education Law "2018-a, and the district clerk failed to provide any instruction that the applications were to be returned to the clerk's office separately from the absentee ballot. Petitioner requests that the two absentee ballots be declared valid, and that they be opened and counted.

Respondent contends that Ms. Phillips and Mr. Laffey failed to comply with the requirements of "2018-a, and their absentee ballots are void per Education Law "2034(3)(a) because they included extraneous papers with the ballots. Respondent also contends that, in any event, petitioner fails to rebut the presumption of regularity of the election, and fails to show that any of the alleged procedural irregularities affected the outcome of the election.

Respondent also raises several procedural objections. Respondent asserts that Eunice Marchi is a necessary party who must be named and joined as a respondent in this appeal. Respondent further contends that the appeal is untimely because, although petitioner initially served his petition on June 17, 1997, he notified the district clerk by letter dated June 19, 1997 that he was withdrawing the petition. Petitioner subsequently sent another letter to respondent's counsel on July 30, 1997, indicating that he intended to pursue the appeal. Respondent contends this "reopening" of the petition is untimely and improper. Respondent further alleges that, because petitioner failed to contest the district's failure to canvass the challenged votes at the time of the election or at the recanvass meeting on or about May 21, 1997, failed to request a stay of the run-off election, and participated in the run-off election, he is precluded from challenging the election results.

Respondent additionally objects to the reply submitted by petitioner, who initially appeared prose but later retained counsel. Respondent contends the reply contains new legal theories and new evidence buttressing the allegations in the petition, and should not be considered.

I will first address respondent's procedural objection that Eunice Marchi is a necessary party and should have been joined as a respondent. Respondent urges that petitioner's failure to do so requires dismissal of the petition. 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 Schuler, 37 Ed Dept Rep 512; Appeal of Garard, 36 id. 15). If 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 Gravink, 37 Ed Dept Rep 393).

Petitioner specifically seeks to unseat Ms. Marchi. Thus, she is a necessary party to this appeal. Although she was personally served with a copy of the petition, she is not named as a respondent in the caption, there is no notification to her in the notice of petition that she personally must appear and respond to the allegations in the petition, and she did not in fact appear in her personal capacity.

Section 275.8(d) of the Commissioner's regulations requires that "a copy of the petition must be served upon ... each person whose right to hold office is disputed and such person must be joined as a respondent" (emphasis added). Thus, even though copies of the petition and supporting papers were served personally upon Ms. Marchi, mere service of a copy of the petition does not accomplish the second requirement of 8 NYCRR "275.8(d), i.e., joinder of the individual as a respondent (8 NYCRR "275.8[d]; Appeal of Heller, 38 Ed Dept Rep 335; Appeal of Chechek, 37 id. 624; Appeal of Hochhauser, et al., 34 id. 580, citing City of Mount Vernon v. Best Development Co., 268 NY 327; Application to Reopen Appeal of Reese, et al., 34 Ed Dept Rep 447). The individual must also clearly be named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Heller, supra; Appeal of Hochhauser, supra; Application to Reopen Appeal of Reese, et al., supra). It is the notice of petition which alerts a party to the fact that he or she is required to appear in the appeal and to answer the allegations contained in the petition (8 NYCRR ""275.11, 275.13; Application of the Board of Education of the Ardsley Union Free School District, 38 Ed Dept Rep 221; Appeal of Osterman, 30 id. 290).

Section 275.8(d) expressly contemplates that the challenged candidate's status as a new member of the respondent board is not sufficient, and that such candidate must be joined as a respondent in his or her individual capacity. Therefore, in the instant appeal, I find that petitioner did not properly name and join Ms. Marchi in her personal capacity as a respondent. Accordingly, the appeal must be dismissed for failure to join a necessary party (Appeal of Heller, supra).

The appeal must also be dismissed on the merits, because the record establishes that the absentee ballots submitted by Ms. Phillips and Mr. Laffey are void as a matter of law. Education Law "2034 governs the canvassing of ballots in district elections. Section 2034(3) provides, in relevant part, that "[t]he whole ballot is void if the voter (a) does any act extrinsic to the ballot such as enclosing any paper or other article in the folded ballot." In the instant case, irrespective of the various procedural objections and legal theories raised, or whether the voters were confused, the two voters admit that they placed their applications inside the sealed ballot envelopes together with their absentee ballots, and forwarded the sealed envelopes to the district clerk.

Strict construction of an election statute is required when issues arise as to the recording of votes (Matter of Quinn v. Tutunjian, 98 AD2d 938, 940, aff'd, 61 NY2d 730 ["The importance of order and precision in the voting process requires that many of the provisions of the Election Law be strictly interpreted ... This is particularly true of the recording of votes, the heart of the electoral process."]). I find that inclusion of the applications in the sealed ballot envelopes with the ballots was an act extrinsic to the ballot in violation of "2034(3)(a), which voids the whole ballot (Appeal of Harris, 35 Ed Dept Rep 478). There is no evidence in the record indicating that an exception to "2034(3)(a) would apply (seeAppeal of Harris, supra, where the Commissioner found that extrinsic material was physically attached to absentee ballots when they were initially received by voters). Therefore, even if opened, the record establishes that the two challenged ballots are void as a matter of law pursuant to "2034(3)(a), and cannot be canvassed. There is thus no reason to disturb the election.

Additionally, I find that the instructions for use of the ballot envelope were not so deficient as to confuse the ordinary voter. Education Law "2018-a governed the use of absentee ballots in the election at issue. In accordance with "2018-a, the application for absentee ballot used by respondent clearly stated, in bold print, that the application must be received by the district clerk at least 7 days before the election if the absentee ballot was to be mailed to the voter, or the day before the election if the ballot was to be personally delivered to the voter. The district clerk stated in her affidavit that absentee ballot applications were provided to voters clipped to a plain envelope with only the address of the district printed on it. The absentee ballots provided to voters were already pre-folded and inserted into absentee ballot envelopes, which stated in large, bold letters "OFFICIAL BALLOT, ABSENTEE VOTER." Instructions on the ballot envelopes stated "[a]fter marking ballot, fold and enclose it in this envelope and seal it...Enclose in envelope addressed to office of the clerk of the school district. To be received by that office, no later than five p.m. on the day of the election" (emphasis in the original). Neither the district clerk's name nor address were inscribed on the absentee ballot envelope, and the ballot envelope noted only the name and address of the voter casting the absentee ballot. In the oath entitled "Statement of Absentee Voter" on the back of the ballot envelope, which voters are required to read and sign, there was reference to the "application heretofore submitted." Both voters signed and dated the oath, Ms. Phillips on May 10 and Mr. Laffey on May 18, 1997.

When viewed as a whole, I find that the instructions on the ballot envelope were sufficiently clear to inform voters that only the absentee ballot was to be sealed in the ballot envelope and that the sealed ballot envelope was to be returned to the district clerk in a separately addressed envelope. Thus, irrespective of whether the application and absentee ballot were received at the same time by the voter, the instructions to place only the absentee ballot in the ballot envelope, and to return the sealed ballot envelope to the clerk's office in the envelope addressed to the clerk, were reasonably clear. The two voters' admitted failure to abide by those instructions is a violation of ""2018-a and 2034(a) that requires the noncanvassing of these two absentee ballots.

In light of the foregoing disposition, I will not address the parties' remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE