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Decision No. 14,133

Appeal of ALBERT BREUD, JR., JAY GOLDMAN, and FRED GORMAN from action of the Board of Education of the Sachem Central School District, Vincent Tria, Sr., James Kiernan and Ralph Stile regarding election irregularities.

Decision No. 14,133

(May 25, 1999)

Kupillas, Unger & Kupillas, attorneys for petitioners, Robert Unger, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondents, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--Petitioners, unsuccessful candidates for the Board of Education of the Sachem Central School District ("respondent board"), appeal the conduct of the May 1997 election. The appeal must be dismissed.

On May 20, 1997 respondent board held an election to fill three vacant seats on the board of education. The final vote tally for each seat was:

Board Seat #1: Ralph Stile 4419

Jay Goldman 3940

Board Seat #2: Vincent Tria, Jr. 4415

Albert Breud 3836

Board Seat #3: James Kiernan 4636

Fred Gorman 3786

Respondent Stile received 479 more votes than petitioner Goldman, respondent Tria received 579 more votes than petitioner Breud, and respondent Kiernan received 850 more votes than petitioner Gorman.

Petitioners allege that respondent board violated the Freedom of Information Law ("FOIL") by denying access to election documents requested by petitioner Gorman after the election. Specifically, Gorman requested the opportunity to inspect the voting machines, all voter registration books, and tallies. Petitioners claim that respondent board violated FOIL by not allowing them to examine these records and allege that the District Clerk threw away all 12 district-wide voter registration books used by election inspectors during the vote. They also claim numerous improprieties in the manner in which the election was conducted, particularly concerning voter registration, which they assert warrant overturning the election results.

Respondents deny that any FOIL violations occurred, and maintain that I lack jurisdiction to consider these alleged violations. Furthermore, respondents assert that there were no election improprieties. Although respondents admit to some minor deficiencies in the manner in which the election was conducted, they contend that these deficiencies were not sufficiently significant to impact the outcome of the election.

Before addressing the merits of this appeal I will address two procedural issues raised by respondents. In their petition, petitioners requested permission to submit a late reply to obtain additional responses from pending FOIL requests. The record indicates a late reply was submitted on or about December 2, 1997. Petitioners' reply includes additional claims and exhibits. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been included in the petition (Appeal of Krantz, 38 Ed Dept Rep 485; Appeal of Kushner, 36 id. 261). Therefore, while I have reviewed petitioners' reply, I have not considered those portions which contain new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

A number of petitioners’ claims concern alleged violations of FOIL. The appropriate forum for addressing such violations is the Supreme Court of the State of New York, not a "310 appeal to the Commissioner of Education (Public Officers Law "89; Appeal of Kushner, supra). Therefore, I am without jurisdiction to decide those claims.

Turning to the merits of the appeal, I find that petitioners have not overcome the presumption of regularity in the conduct of the election. 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). Petitioners have the burden of establishing all the facts upon which they seek relief (8 NYCRR "275.10, Appeal of Harris, supra; Appeal of Pickreign, 28 Ed Dept Rep. 163).

Upon the record before me I find that petitioners have failed to meet their burden of proof. Petitioners claim that voters were allowed to vote when their buff signature cards were not in the signature card book. However, voters who did not previously vote in a school district election, but are registered voters in Suffolk County, are logged in the county register books. First-time voters in the school district election would not have pre-existing buff cards in the district's register. Voters whose names appear in either the school district's register and/or the county board of elections' register must be allowed to vote (Appeal of Hennessey, 37 Ed Dept Rep 480; Appeal of Greening, 35 id. 122). Therefore, this allegation is not indicative of any irregularity in the conduct of the election.

Petitioners claim to have uncovered irregularities in the election results at four polling places. Specifically, they allege at the Wenonah Elementary School there were 661 buff cards, but the voting machine contained 733 votes (72 more votes than recorded voters); at the Cayuga Elementary School there were 839 buff cards and the voting machine contained 900 votes (61 more votes than recorded voters); at the Gatelot Elementary School there were 594 buff cards and 639 votes on the voting machine (45 more votes than recorded voters); and at the Hiawatha Elementary School the "tally sheets" (poll voter list) contained 758 names yet the two voting machines registered 855 votes (97 more votes than names on the tally sheet). Petitioners claim that at the first three sites alone (1/4 of the voting sites) there was a 178 vote discrepancy. If extrapolated over the remaining 12 sites the discrepancy could be as high as 712.

Respondents acknowledge that there is a discrepancy between the number of buff cards on file at three of those polling places and the total number of votes cast at those sites. However, after service of this petition, the District Clerk retabulated the buff cards on file for those polling places and found the discrepancies to be minimal. At Wenonah 738 buff cards were on file, with 733 votes on the voting machine; at Cayuga 905 buff cards were on file with 900 votes on the voting machine; and at Gatelot 650 buff cards were on file with 639 votes on the voting machine. The total discrepancy in votes and buff cards is 21. Respondents admit that in some cases, persons were allowed to vote in an election district which was not their home district. The District Clerk was aware of at least five election workers who voted where they worked in lieu of their home districts. Yet, it appears that the buff cards for those voters were properly filed in the registration books of their home districts. Given the margin of victory in each race, I cannot find that a difference of 21 votes was sufficient to affect the outcome of the election.

There is no explanation in the record as to why petitioners' and respondents' counts of the buff cards and vote tallies are so disparate. However, even according to petitioners' calculations, there was only a difference of 178 votes. Given that the margin of victory in each of the three contests was at least 478 votes, I find that the difference was not sufficient to have affected the outcome of this election. I will not extrapolate the degree of error found in three polling places to the other election districts as this would be pure speculation (see Appeal of Chechek, 37 Ed Dept Rep 624).

According to petitioners, the Hiawatha voting machine totals indicate that 97 more voters cast ballots than were listed on the tally sheets (855 voters cast ballots on the two voting machines in use, and 758 names were recorded in the tally book). Respondents claim that the election worker assigned to Hiawatha was unable to record all the names due to the large volume of voters presenting themselves to vote at that location. They admit that this was an error, however, they maintain that this error did not affect the outcome of the election. In an analogous situation, former Commissioner Sobol held that the failure to sign a poll list is a technicality (Appeal of Singer, 34 Ed Dept Rep 355). Accordingly, in the absence of evidence that this technical failure affected the outcome, it is an insufficient reason to overturn the election.

Petitioners also contend that all buff signature cards were required to be filed with the district clerk by May 14, 1997. A number of buff cards were filled out on May 20, 1997 at the Wenonah, Cayuga, Gatelot, Hiawatha, Nokomis, Chippewa, and Waverly Elementary Schools. Petitioners believe that they have discovered over 900 such cards, many from voters who were allegedly not previously registered with the Suffolk County Board of Elections. Respondents dispute that there is any impropriety in allowing persons without preexisting buff cards to vote. As previously stated, a voter registered to vote in the county must be allowed to vote in a school district election. If an individual had not previously voted in a district election he would not have had a buff card on file but would have filled one out before voting on May 20. Thus, there appears to be a reasonable explanation for the numerous buff cards that were apparently filled out on the date of the election. Moreover, with the exception of one unsworn letter and a list of "unregistered" voters of unknown origin, petitioners offer no proof that these alleged voters were not registered with the county.

Petitioners allege that the district clerk discarded voter registration books used at each polling site, which petitioners allege is further proof of respondent board’s improper conduct. Respondents deny the district clerk improperly discarded voter registration books. The district maintains 36 voter registration books – 3 books for each of the 12 election districts. These books contain the registration cards (buff cards) showing the signature of each registered voter. In addition to the district voter registration books, the district generates a computerized list of all registered voters contained in the district’s registration books called the "master list," which is kept by the district clerk. This master list is then subdivided to separately identify the 12 election districts. Each of these 12 lists contains the names of all the registered voters in that election district. At the conclusion of the election the district clerk discarded the 12 printouts as the names were already contained in the master list. Thus, respondents allege that no voter registration books or lists were destroyed, just copies of the master list. Based on the record before me, this is not a sufficient basis to warrant overturning the election.

Petitioners also maintain that the 24 voting machines obtained from the Suffolk County Board of Elections were not used properly by the district. Specifically, petitioners contend that the district failed to record an opening protection number from the voting machines. Therefore, petitioners maintain an accurate, verifiable vote cannot be ascertained. However, respondents claim that the voting machine public counter was marked at zero, and so recorded. Prior to the vote, an election inspector is required to examine the voting machines and make sure that the counters are set at zero (Education Law "2035[1]). There is nothing in the record before me to indicate that this was not done. In fact, petitioners' own exhibits demonstrate inspectors recorded both the public and protective counters.

Petitioners allege that the district clerk changed the form of the nominating petition from the previous election by eliminating the acknowledgement signature line of the district clerk at the bottom of the petition. Respondents admit that the clerk did change the form but only by placing the acknowledgement, date and time received at the top right of the cover letter. The evidence submitted shows this to be the case. I find this to be a technicality and insufficient reason to overturn the election.

In sum, I find that petitioners have failed to rebut the presumption of regularity in the conduct of the election. Petitioners have not substantiated their allegations nor met their burden of proof. In view of the margin of victory in each of the three races, I cannot find that any irregularities actually affected the outcome of the election. Accordingly, there is no basis for me to set aside the results of the election.

THE APPEAL IS DISMISSED.

END OF FILE