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Decision No. 14,298

Appeal of ANTHONY WAYNE from action of Martin Handler, District Superintendent of the Sullivan County Board of Cooperative Educational Services, relating to the conduct of a school district reorganization vote.

Decision No. 14,298

(January 31, 2000)

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges a vote held on June 10, 1999 which authorized the merger of the former Delaware Valley Central School District, Jeffersonville-Youngsville Central School District and Narrowsburg Central School District into a single central school district. The appeal must be dismissed.

By order dated May 6, 1998 made pursuant to Education Law "1803-a, I directed the reorganization of the aforementioned three school districts into a single central school district. The qualified voters of the school districts requested that a vote be conducted to determine whether such reorganization should be approved and implemented. At the initial vote held on May 27, 1998, voters of the Jeffersonville-Youngsville Central School District and the Narrowsburg Central School District approved the centralization order. Voters in the Delaware Valley Central School District did not. One year later, pursuant to Education Law "1803-a(6), qualified voters in the Delaware Valley Central School District requested that a re-vote be held in that district. I issued an order directing that a special meeting be held in the Delaware Valley Central School District on June 10, 1999 to vote on the centralization order.

By order dated May 15, 1999, I appointed a Board of Canvass to conduct the vote and serve as the board of elections for the vote (Education Law "1803-a[3]). District Superintendent Martin Handler ("respondent") assisted in implementing the statutory requirements for the conduct of the special meeting.

At the June 10, 1999 vote, qualified voters voted by poll registration, whereby any individual who presents himself or herself personally at the polling place to vote must be permitted to vote unless challenged pursuant to Education Law "2019. If so challenged, the voter must sign a declaration of qualification and upon such execution, must be permitted to vote. Only two individuals were challenged at the June 10, 1999 vote. Each signed an affidavit of qualification and was permitted to vote. The voting resulted in 1,019 ballots in favor of establishing the new school district and 772 opposed, a margin of 247 votes.

Petitioner seeks to initiate this appeal on behalf of himself and an unnamed "class" of individuals challenging the outcome of the vote. He claims "there was massive voter fraud in the merger vote of June 10, 1999, in that unqualified votes were cast which resulted in a false pro-merger decision." He also claims 243 voters signed illegal addresses, incomplete names and misspelled towns. Petitioner also alleges that respondent permitted illegal electioneering within 100 feet of the polling place and that respondent failed to use Delaware Valley's personal registration books or voting procedures. Finally, petitioner alleges respondent violated the voters' constitutional civil rights. As part of his appeal, petitioner requested an interim order staying the merger of the three districts pending a final decision in this appeal. On September 24, 1999, petitioner's request for an interim order was denied.

Respondent contends that the petition is not verified as required by regulations, that petitioner lacks standing to maintain this appeal, and that petitioner has failed to establish the criteria required to maintain this proceeding as a class appeal. Respondent also asserts that the June 10, 1999 vote was conducted in compliance with applicable law, and that petitioner has established no basis on which to set aside the results of that reorganization vote.

Initially, I must address two additional procedural issues. Petitioner asks that I recuse myself from deciding this appeal because I originally ordered that the vote be conducted and State Education Department staff provided technical assistance in the conduct of the vote. Petitioner erroneously asserts that, therefore, I conducted the vote. In fact, petitioner named me as a respondent and served me with a copy of the petition. Petitioner incorrectly characterizes the role of the Commissioner of Education with respect to the reorganization of school districts. Pursuant to Education Law "314 and Article 37, the Commissioner of Education may order centralization of two or more central school districts in New York State. Upon request of the qualified voters of any of the affected school districts, a special meeting of the qualified voters of the school districts must be scheduled to determine whether the order of the Commissioner shall be approved (Education Law ""1803, 1803-a). Pursuant to Education Law "1803-a(3), applicable in this instance, the Commissioner of Education appoints a Board of Canvass to conduct the election. Thus, while the Commissioner of Education is required, upon request, to order a special meeting of the qualified voters of the school districts to approve the Commissioner's reorganization order, the Commissioner does not conduct the special meeting. Therefore, the Commissioner of Education is not a proper respondent in an appeal from the results of a reorganization vote. Indeed, Education Law "1803-a(5) provides for an appeal to the Commissioner of Education to challenge the conduct of the special meeting. Consequently, I am statutorily required to decide this appeal and, therefore, decline to recuse myself.

As a second procedural matter, I note that petitioner submitted a reply containing new allegations and claims not raised in his petition. Pursuant to 8 NYCRR ""275.3 and 275.14, the purpose of a reply is to respond to new material and affirmative defenses set forth in the answer. A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been in the petition (Appeal of Tudor, 38 Ed Dept Rep 591, Decision No. 14,100; Appeal of Akshar, 35 id. 424, Decision No. 13,590). 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.

Turning to the procedural defenses set forth in the verified answer, respondent asserts that the petition is not verified as required by 8 NYCRR "275.5 and, therefore, must be dismissed. However, the petition filed with my Office of Counsel does contain a verification. Therefore, dismissal on that basis is unwarranted.

Respondent also alleges that petitioner lacks standing to maintain this appeal. Petitioner challenges respondent's actions in conducting a special district meeting to reorganize the Delaware Valley Central School District – the school district in which petitioner resides. Petitioner's status as a district resident, therefore, is sufficient to maintain his appeal with respect to the manner in which respondent conducted the special district meeting (Appeals of Schadtle and Wilcox, 38 Ed Dept Rep 599, Decision No. 14,102; Appeal of Gravink, 37 id. 393, Decision No. 13,888; Appeal of Waitkins, 26 id. 263, Decision No. 11,751).

Respondent also challenges petitioner's attempt to initiate the appeal as a class action. An appeal may only be maintained on behalf of a class "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; Appeal of Prentice, 38 Ed Dept Rep 736, Decision No. 14,130; Appeal of Astafan, 36 id. 463, Decision No. 13,776). Petitioner must set forth the number of individuals he seeks to represent (Appeal of Prentice, supra; Appeal of Lambert, 37 Ed Dept Rep 599, Decision No. 13,937) and show that all questions of law and fact would be common to all members of the class (Appeal of Prentice, supra; Appeal of Astafan, supra). Petitioner has not made this showing. In fact, the petition does not address the requisite standard at all. Therefore, class status is denied.

The appeal must also be dismissed on the merits. To invalidate the results of a school district meeting, petitioner must establish not only that irregularities occurred, but also that the irregularities affected the outcome of the vote (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Pappas, 38 Ed Dept Rep 582, Decision No. 14,098; Appeal of Chechek, 37 id. 624, Decision No. 13,943), were so pervasive that they vitiated the electoral process (Appeal of Pappas, supra; Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162) or demonstrate a clear and convincing picture of informality to the point of laxity in adhering to the Education Law (Matter of Pappas, supra; Matter of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, aff'dsubnomCappobianco v. Ambach, et al., 112 AD2d 640). Mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Krantz, 37 Ed Dept Rep 257, Decision No. 13,853).

Petitioner has failed to meet his burden of proof. Petitioner claims that respondent failed to use the Delaware Valley Central School District's personal registration books. However, Education Law "1803-a, which sets forth the procedures to be followed in conducting the reorganization vote herein, does not authorize or require the use of personal registration. Instead, respondent properly utilized poll registration during the reorganization vote, whereby each voter presenting himself or herself personally to vote must sign a poll book which includes a statement that he or she is a qualified voter of the district (Education Law "1803-a[2][e]). The record indicates that the June 10 vote was conducted in accordance with the statutory requirement. Therefore, the fact that personal registration was not utilized in connection with the June 10, 1999 reorganization vote does not provide a basis to invalidate the results.

Petitioner asserts that unqualified voters were allowed to cast ballots at the June 10 reorganization vote. To the extent that petitioner challenges the votes of these individuals, he was required to challenge alleged unqualified voters prior to or at the time such voters presented themselves to vote. A person who has the right to challenge a voter and permits him or her to vote without challenge, cannot object to the proceedings of the meeting because such unqualified person participated (Appeal of Pappas, supra; Appeal of Fraser-McBride, 36 Ed Dept Rep 488, Decision No. 13,783). There is no evidence that petitioner made a timely challenge to the voters' qualifications at the June 10 reorganization vote.

Nor has petitioner established that any irregularity occurred at the June 10 reorganization vote or that alleged irregularities affected the outcome of the vote. Petitioner offers only conclusory statements and his own compilation of extensive lists of allegedly unqualified voters, as well as lists of voters whose signatures or addresses were allegedly unclear. Petitioner has not established that a single named individual was, in fact, unqualified to vote. As noted above, mere speculation is an insufficient basis on which to nullify the results of an election. Petitioner also offers no proof that any of the alleged unqualified voters voted in a particular manner. Petitioner, therefore, failed to establish that any irregularities, in fact, occurred at the June 10 reorganization vote or that the outcome would have been affected by the occurrence of the alleged irregularities. Therefore, I find no basis on which to invalidate the results of the June 10, 1999 school district reorganization vote.

I note that petitioner requests that I conduct an investigation of the allegations of voter fraud contained herein. In an appeal to the Commissioner pursuant to Education Law "310, petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Schadtle and Wilcox, supra; Appeal of Walsh, 34 Ed Dept Rep 544, Decision No. 13,405). For the reasons set forth above, I find that petitioner failed to meet his burden of proof, and the appeal must be dismissed. In view of this disposition of the appeal, I will not address the parties' other claims.

THE APPEAL IS DISMISSED.

END OF FILE