Decision No. 14,559

(April 12, 2001)

MILLS, Commissioner.--Petitioner Laskas-Gillespie, an unsuccessful candidate for election to the Board of Education of the City School District of the City of Long Beach ("respondent board" or "board"), and petitioner Warshaw challenge the results of the district election held on May 16, 2000. Because the appeals arise out of the same set of facts and involve similar issues, they have been consolidated for decision. The appeals must be dismissed.

The May 16, 2000 district election included a school budget vote, a library budget vote, the election of one library trustee, and the election of two school board members. Four candidates vied for election to the two school board vacancies. After the polls closed and the machine votes were counted, petitioner Laskas-Gillespie was in second place behind candidate Gina Guma. However, after the absentee ballots were counted and added to the machine totals, petitioner fell to third place and Ms. Guma and candidate Norman Alpern were elected to the board. Petitioners and respondents report different final vote numbers:

Petitioners Respondents

Guma 1,868 1,868

Alpern 1,607 1,607

Laskas-Gillespie 1,523 1,512

Gergen 1,486 1,485

Petitioners commenced these appeals to invalidate the school board election. Petitioner Laskas-Gillespie's request for interim relief was denied on June 28, 2000. Petitioner Warshaw's request for interim relief was similarly denied on June 29, 2000.

Petitioners contend that irregularities surrounding the election were so pervasive that the election should be overturned. They allege that lists of absentee voters were not posted at three voting locations in violation of Education Law "2018-a(6)(b). Petitioners contend that elderly and disabled voters who complete absentee ballots at their institutional residences were pressured into voting for particular candidates. They assert that the Nassau County District Attorney commenced an investigation into the voting processes at these residences. Petitioner Laskas-Gillespie also contends that she was not given the opportunity to examine the absentee ballots. Petitioners further accuse District Clerk Joan Wasserman of violating Education Law "2017 by failing to transmit updated registration lists to the voting districts, failing to deliver absentee ballots to the election inspectors and failing to document the delivery of absentee ballots.

In addition, petitioner Laskas-Gillespie submits that the removal of her campaign signs from private lawns, anonymous offensive phone calls, comments and mail are evidence of improprieties surrounding the election process. She appears to indirectly accuse Mr. Alpern of being connected to these acts. Petitioner Warshaw also contends that respondent board failed to certify the election as required by Education Law "2610. Petitioners further assert that the number of voters who signed the voter sign- in sheets did not match the number of votes recorded by the voting machines, and that 16 votes were cast by voters who used the address of a private school as their voting address. Petitioners ask that I invalidate both the machine votes and the absentee ballots.

Respondents deny petitioners' allegations and present a detailed explanation of the process used to validate the election results as evidence of the proper conduct of the election. Respondents contend that they used a list of registered voters and addresses provided to them by the Nassau County Board of Elections. Respondents further contend that they had no authority to invalidate ballots received from registered voters whose names appeared on that list. Respondents admit that the Nassau County District Attorney commenced an investigation, but assert that they have no authority to invalidate ballots on that basis. Respondents also admit that the election was not certified, and assert that the board delayed certification while awaiting a determination of the instant appeals by the Commissioner. Respondents argue that even if there were discrepancies in the balloting, the number of questionable votes would not affect the outcome of the election. Respondents further assert that even if there were discrepancies relating to the election of school board members, there is no evidence of problems with the budget and library votes that took place simultaneously. Respondents ask that those results not be disturbed.

Initially, I must address several procedural issues. Petitioners purport to bring their appeals individually and "on behalf of all others similarly situated." 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 a Student with a Disability, 39 Ed Dept Rep 1, Decision No. 14,154; Appeal of Aloisio, et al., 38 id. 169, Decision No. 14,009). To qualify for class certification, petitioners must set forth the number of individuals they seek to represent (Appeal of a Student with a Disability, supra; Appeal of Sperl, 33 Ed Dept Rep 388, Decision No. 13,088), and must also show that all questions of law and fact would be common to all members of the class (Appeal of a Student with a Disability, supra; Appeal of Donnelly, 33 Ed Dept Rep 362, Decision No. 13,079). In this appeal, the number of prospective members of the class has not been set forth, nor have petitioners shown that anyone else is "similarly situated." Therefore, petitioners' requests for class status are denied. However, the appeals may proceed in petitioners' individual names.

Additionally, in their replies, petitioners set forth additional information, allegations and exhibits. Petitioner Warshaw also submitted new allegations and exhibits with her memorandum of law and then, separately, submitted a copy of a letter from the Nassau County District Attorney to the Nassau County Board of Education. Respondents object to these additional submissions, but ask that I consider their sur-reply, which counters the new material presented by petitioners. 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). The purpose of a memorandum of law is to set forth legal arguments (8 NYCRR "276.4). Neither a reply nor a memorandum of law is meant to buttress allegations in the petition or to belatedly add assertions or exhibits which should have been in the petition (Appeal of Boni, 40 Ed Dept Rep ___, Decision No. 14,483; Appeal of McCart, et al., 39 id. 534, Decision No. 14,302). Therefore, while I have reviewed petitioners' submissions, I have not considered those portions that contain new allegations or exhibits which are not responsive to new material or which affirmative defenses set forth in the answer. Accordingly, I have not considered the sur-reply filed by respondents.

The Nassau County District Attorney's office also sent a copy of the grand jury report relating to election irregularities in the county directly to my office. This was received on February 15, 2001. Petitioner Warshaw submitted an affidavit requesting that I consider the report as part of her appeal. Respondents submitted a reply affidavit in response to that request, which is dated March 9, 2001 and which was received by my Office of Counsel on March 21, 2001. I have accepted these submissions and will consider them in making my determination.

The appeals must be dismissed because petitioners have failed to join necessary parties. 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 Armella, 40 Ed Dept Rep ___, Decision No. 14,525; Appeal of Diane P., 37 id. 637, Decision No. 13,945; Appeal of Edward G., 36 id. 9, Decision No. 13,636). In these appeals, petitioners have asked the Commissioner to invalidate all machine and absentee ballots and, in the alternative, to order a new election. Because the successful candidates from the May 16, 2000 election could lose their board seats as a result of a new election, they should have been joined as parties to these appeals. Petitioner Laskas-Gillespie did not join either Ms. Guma or Mr. Alpern. While petitioner Warshaw did join Mr. Alpern, she failed to join Ms. Guma. Therefore, the appeals must be dismissed.

The appeals must also be dismissed on the merits. To invalidate the results of a school district election, petitioners must establish not only that irregularities occurred but also that any 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 Roberts, 33 Ed Dept Rep 601, Decision No. 13,162), were so pervasive that they vitiated the electoral process (Appeal of Collins, 39 Ed Dept Rep 226, Decision No. 14,223; Appeal of Roberts, supra), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Christe, 40 Ed Dept Rep ___, Decision No. 14,514; Matter of Levine, 24 id. 172, Decision No. 11,356, aff'd sub nom Capobianco v. Ambach and Bd. of Educ., 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 an election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Collins, supra; Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483, Decision No. 12,177). Petitioners have the burden of establishing all the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Wierzchowski, 39 Ed Dept Rep 682, Decision No. 14,348). To warrant setting aside an election, petitioners must establish that the improprieties are substantial and not merely technical in nature (Appeal of Morris, et al., 37 Ed Dept Rep 590, Decision No. 13,936; Appeal of Taylor, 31 id. 46, Decision No. 12,564).

Petitioner Laskas-Gillespie failed to provide a single item of evidence with her petition and, therefore, has failed to meet her burden of proof. Petitioner Warshaw attached numerous exhibits to her petition, including a number of photocopied newspaper articles. It is well settled that in appeals to the Commissioner of Education, newspaper articles do not constitute proof of any of the facts stated therein (Appeal of Shravah, et al., 36 Ed Dept Rep 396, Decision No. 13,760; Appeal of Como, supra; Matter of Norden, 23 Ed Dept Rep 94, Decision No. 11,147). Accordingly, I reject the newspaper articles as proof of petitioners' allegations. The remaining exhibits consist of items such as campaign fliers, board meeting agendas with handwritten notes and handwritten lists of alleged voters indicating their ages. None of these materials on their face establish improper conduct by respondents sufficient to overturn the election.

For example, petitioners provide an uncertified copy of a building certificate of occupancy to prove that 16 voters used an address that was actually a school and not a residence. Respondent board contends, and petitioners do not dispute, that it received its voter list from the Nassau County Board of Elections, pursuant to Election Law "5-612. District residents whose names appear on the county board of elections' register must be allowed to vote (Appeal of Crowley, et al., 39 Ed Dept Rep 665, Decision No. 14,345; Appeal of Breud, et al., 38 id. 748, Decision No. 14,133; Appeal of Hennessey, 37 id. 480, Decision No. 13,909). Thus, respondents properly allowed duly registered voters whose names appeared on that list to vote in this election.

Additionally, petitioners do not show that respondents were aware of any deficiencies in the list of voters. Nor do they provide any evidence that these 16 voters, despite using this address for voter registration purposes, are not district residents who may have another address within the district. Finally, there is no indication that petitioners made any timely challenges to the qualifications of such voters. Any qualified voter may challenge, either prior to or at the district meeting, the qualifications of any other voter (Education Law ""2606[8] and 2609[5]). Challenges to the qualifications of a voter must be made no later than the time the voter appears at the polls to vote (Appeal of Crowley, et al., supra; Appeal of Fraser-McBride, 36 Ed Dept Rep 488, 495, Decision No. 13,783). A person who has the right to challenge a voter and permits him or her to vote without such challenge, is not allowed to object to such voter's participation (Appeal of Crowley, et al., supra; Appeal of Fraser-McBride, supra; Appeal of Horton, 35 Ed Dept Rep 168, Decision No. 13,503).

Petitioner Warshaw also submits a sworn statement from an individual who states that she interviewed several voters who are residents of adult homes. This statement contains information regarding alleged coercive tactics used on these residents during the voting process. Petitioners claim that these residents are too fearful to submit affidavits attesting to the truth of the accusations. Even if this is accurate, there is no evidence that respondents are in anyway responsible for this activity. Information in the statement indicates that the source of the alleged coercion may be the owner of one of these residences.

Petitioner Warshaw also attempts to draw a connection between Mr. Alpern and the alleged coercion in these residences. She contends that one "Ruth Aaronson" helped the residents fill out their absentee ballots and pressured them to vote for particular candidates. As proof of motivation, she contends that Ms. Aaronson's husband serves on the Long Beach Auxiliary Police with Mr. Alpern. To establish the Alpern-Aaronson connection, petitioner Warshaw submits a copy of an awards ceremony program from 1994 which does not establish any current relationship between the parties and certainly does not establish that any improper activity has occurred. There is one sentence in the above-mentioned sworn statement that states that Ms. Aaronson assisted residents with the ballots, but it does not indicate that Ms. Aaronson acted improperly while doing so. Petitioners also submitted copies of absentee ballot envelopes that indicate Ms. Aaronson assisted in completing ballots for three visually impaired voters. However, there is no evidence that these ballots did not reflect the intent of the voters or that Ms. Aaronson acted improperly. In sum, petitioners do not establish that respondents have knowledge or were in any way responsible for any of these alleged activities.

While I am disturbed by the allegations that a vulnerable group of elderly and disabled voters may have fallen victim to coercive tactics while completing their ballots, petitioners have failed to supply sufficient evidence to establish that this activity, in fact, occurred. Even if it did, petitioners have, likewise, failed to supply evidence that respondents were aware of this activity or that it affected the outcome of the election. I note that these allegations are the subject of a grand jury report received by my office on or about February 15, 2001. This report recommends, among other things, that the New York State Legislature enact a provision requiring local school boards to supervise the election process in adult care facilitates using procedures similar to the requirements of Election Law "8-407. However, even considering this report as part of petitioners' appeal, it is not sufficient to invalidate the election. The Education Law does not currently require a school board to supervise the election process at adult care facilities. Furthermore, neither the grand jury report nor petitioners' submissions contain evidence as to the number of voters who may have been influenced by any improper activity. Petitioners appear to ask that all of the votes cast by this population be voided. There is simply not enough evidence in the record before me to invalidate every absentee ballot cast by this group of citizens. To do so without adequate evidence would only disenfranchise an already vulnerable population.

I note that in response to the grand jury report, respondent board's attorney submitted a letter and a copy of a board resolution adopted on February 15, 2001, which indicate that the board is considering what actions it can take to address the concerns raised in the grand jury report. I am confident that respondent board will thoroughly evaluate all legally available options.

Petitioners also allege that 78 absentee ballots were received after the polls closed on May 16, 2000. Respondents deny that allegation and give a detailed explanation of the process used to count and validate the ballots. Ms. Wasserman states that there was some initial confusion about the number of absentee ballots because the individuals who delivered the absentee ballots from the various polling places orally gave her inaccurate counts. Thus, when the ballots were counted the total was different. Again, petitioners have not established that the absentee ballots were received after the polls closed.

According to respondents, of the 756 absentee ballots originally mailed out, 329 were returned by 5:00 p.m. on May 16, 2000. Of these, Ms. Wasserman rejected 15 because the envelopes had not been properly completed and 19 were returned by the United States Postal Service marked "deceased or not locatable", leaving 295 absentee ballots. The polling places were able to validate 67 of these absentee ballots by comparing the signature on the envelope to a signature on a "buff" card retained at the polling place. On May 18, 2000, Ms. Wasserman took the remaining 228 absentee ballots to the Nassau County Board of Elections to compare the signatures on the envelopes with the buff cards on file. Petitioner Laskas-Gillespie and Mr. Alpern were among those present during this process. Ms. Wasserman was able to validate 188 absentee ballots, leaving 40 ballots that either had signatures that did not match the signature on the buff card or with which there was no buff card to compare. These 40 ballots were not validated.

Petitioners argue that the number of invalidated ballots proves that a new election is necessary. Again, petitioners have not provided any evidence to support this contention. They have not established that respondents improperly invalidated any ballots or that the outcome of the election would have been any different if the invalidated ballots had been included in the final election count. In fact, it appears that respondents took extra steps to ensure the integrity of the election by taking the ballots to the county election office to compare signatures.

As for petitioners' remaining allegations, respondents admit that there was a discrepancy between the number of votes registered by the voting machines and the number of voters who signed the voter sign-in sheets before entering the voting booth. Respondents contend that of the 3,288 votes reflected on the voting machine counters, 3,191 were validated using a combination of signed buff cards and the sign-in sheets. Respondent contends that there were only 97 voters whose identities could not be ascertained. While unfortunate, it is not unusual for discrepancies to exist between the machine count and the sign-in sheets at the conclusion of an election (see, e.g., Appeal of Diamond, 39 Ed Dept Rep 541, Decision No. 14,304; Appeal of Crowley, supra). However, the record contains no evidence that the outcome of the election was affected by respondent board's failure to maintain a completely accurate poll list.

Petitioners do not submit any evidence that supports their assertions that Ms. Wasserman failed to transmit updated registration lists to the voting districts, failed to deliver absentee ballots to the election inspectors or failed to document the delivery of absentee ballots.

Both petitioners contend that Ms. Wasserman failed to post absentee ballot lists at the district's polling places. An affidavit submitted by Ms. Wasserman states that she has direct knowledge that all lists were posted as required by law. Moreover, even if petitioners are correct regarding this alleged technical violation, they failed to provide evidence that it affected the outcome of the election.

Petitioners' allegation that respondent board failed to announce the result of the election within 24 hours pursuant to Education Law "2610 is also a technical violation. Absent evidence that it affected the outcome of the election, there is no basis to invalidate the election because of this omission.

As for petitioner Laskas-Gillespie's allegations regarding the removal of her campaign signs and anonymous phone calls, there is no evidence in the record that respondents were responsible for or even aware of these activities. Nor is there any evidence that the outcome of the election was affected by these activities. Again, petitioner has not met her burden of proof.

In conclusion, on the record before me, I find that petitioners have failed to establish improper conduct by respondents that warrants overturning the election.

THE APPEALS ARE DISMISSED.

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