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Decision No. 14,573

Appeal of DIONE GOLDIN, DOUGLASS BITTEKER, DOLORES CHECHEK, EDWARD R. CLAY, DEIDRA DIMASO, KEITH DIMASO, FRANCINE INCORONATO, JOSEPH INCORONATO, ANITA LORDI, V.A. LORDI and CHARLOTTE WEIL from action of Wayne F. Gersen, Superintendent of Schools, Joseph DiDonato, Assistant Superintendent for Personnel, and members of the Board of Education of the Wappingers Central School District regarding a special district meeting.

Decision No. 14,573

(May 7, 2001)

Shaw & Perelson, LLP, attorneys for respondents, Michael K. Lambert, Esq., of counsel

MILLS, Commissioner.--Petitioners, residents of the Wappingers Central School District, challenge certain actions of respondents relating to the conduct of a special district meeting held on March 28, 2000, to consider two bond referendums. The appeal must be dismissed.

Petitioners allege that on the evening of March 28, 2000, respondent Assistant Superintendent for Personnel DiDonato improperly participated in the official reporting or tabulation of votes without authorization by the board of education to do so. Specifically, petitioners allege that at the district office where the votes from the polling locations were being collected by telephone and tabulated, respondent DiDonato announced, after all polling places had reported, that the vote totals did not include 945 "paper ballots" that were used in instances where voting machines were not ready when the polls opened on the morning of the March 28, 2000 vote. Petitioners allege that respondent DiDonato also stated that the paper ballots would not be counted until the next morning because the ballots were not in the district office. Petitioners further allege that the district clerk was never present in the room where the votes were being tabulated.

In addition, petitioners allege that absentee voters' envelopes were not transmitted to the district polling places for tabulation in violation of Education Law "2018-a; that respondents denied their request to have poll watchers at the polling places before the polls opened and after the polls closed; that voter registration books received from the Dutchess County Board of Elections were not available for inspection in violation of Education Law "2015; that qualified voters were not allowed to vote because they were not listed in district voter registration books; that persons were listed in the district voter registration books who were no longer district residents; that confusion in reading the meters behind the voting machines may have occurred and resulted in an inaccurate vote count; that an inaccurate vote count may have resulted because the numbers from the voting machines were transcribed onto paper and then telephoned into the district office; and that the final vote count for each of the two propositions presented at the special district meeting may have been transposed.

Petitioners request that I issue an order to impound all voting machines used at the March 28, 2000 special district meeting for the purpose of a recount; that independent auditors be present at the recount of the voting machines and at the counting of the "paper ballots"; and that if a recount is no longer possible, that the election results be declared null and void.

Respondents deny petitioners' allegations and contend that there is no basis to order a recount. Respondents also contend that the appeal must be dismissed on the grounds that none of the named respondents have been personally served with a copy of the verified petition, and on the grounds that petitioners have failed to establish facts warranting the relief requested and failed to state a claim with respect to their request for the presence of "independent auditors" at a recount of the voting machine votes and at the counting of the paper ballots.

Section 275.8(a) of the Commissioner's Regulations requires that a copy of the petition be personally served upon each named respondent. The affidavits of service submitted with the petition indicate that service was made upon the board of education, respondent Gersen, and respondent DiDonato, by delivering a copy of the petition to the district clerk. Since respondents Gersen and DiDonato were not personally served with a copy of the petition, the appeal must be dismissed as to those respondents.

With respect to service on the board of education, I note that the caption of the appeal is ambiguous in that it names "members of the Board of Education of the Wappingers Central School District" rather than naming the "Board of Education of the Wappingers Central School District." To the extent petitioners seek relief against any individual members of the board of education, the appeal must be dismissed for petitioners' failure to clearly name such individuals as respondents in the caption of the petition and personally serve a copy of the notice of petition upon such individuals (Appeal of a Student with a Disability, 39 Ed Dept Rep __, Decision No. 14,369; Appeal of Lawson, 38 id. 713, Decision No. 14,124). However, it appears from the petition that relief is not sought with respect to any individual member of the board of education. Service upon the district clerk is sufficient to confer jurisdiction upon a board of education (Appeal of MacKay, 39 Ed Dept Rep __, Decision No. 14,391; 8 NYCRR "275.8[a]). Therefore, in the absence of any demonstrated prejudice to respondent board of education, I find that the petition has been properly served upon the board.

Nevertheless, the appeal must be dismissed as moot to the extent that it seeks impoundment of the voting machines and a recount of the machine votes, seeks relief with respect to the counting of the "paper ballots" and seeks appointment of "independent auditors" to be present at such count and recount. Petitioners never requested interim relief pursuant to 8 NYCRR "276.1 to stay the return and recalibration of the voting machines and never requested a stay of the counting of the "paper ballots" pending my decision in this appeal and it is not now possible for me to order the requested relief. The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of K.M., 39 Ed Dept Rep 301, Decision No. 14,243; Appeal of a Student with a Disability, 38 id. 91, Decision No. 13,990).

The appeal must also be dismissed on the merits. Petitioners have the burden of establishing all the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Chechek, 37 Ed Dept Rep 624, Decision No. 13,943). Furthermore, the burden is on petitioners to allege and prove facts upon which relief may be granted, not on the respondents to rebut conclusory allegations (Appeal of Keiling, 25 Ed Dept Rep 122, Decision No. 11,517; Matter of Lawson, 24 id. 132, Decision No. 11,343).

I find that petitioners have failed to meet their burden of proof. The petition consists of nothing more than general, conclusory, and speculative allegations, unsupported by affidavits or any other proof. For example, petitioners merely speculate that "confusion in reading the meters behind the voting machines may have occurred"; "the final vote count for each of the two propositions may have been transposed"; and "there is reason to suspect that the reading of voting machine meters was further misreported because the numbers were transcribed onto paper and then telephoned into the district office" [emphasis added]. Petitioners also allege in a general manner that unnamed, allegedly qualified voters were prevented from voting or that unnamed, unqualified persons were listed in the voter registration books. Petitioners submit no affidavits or other proof in support of their conclusory allegations. With respect to petitioners' allegation that respondents denied their request to have poll watchers at each of the voting locations, respondents deny this allegation and there is no provision in the Education Law that entitles petitioners to have poll watchers appointed (see Education Law "2019-a[2][d]).

Respondents submit the affidavits of Assistant Superintendent DiDonato and the district clerk to refute petitioners' allegations. The assistant superintendent, states that he was present at the district's administrative offices on March 28, 2000 when the votes on the two propositions were tabulated by the district clerk; that as he had done in previous elections, he took a piece of paper reflecting the number of votes at each of the district's six polling places and brought it from the district clerk's office to a location where the public was assembled to receive the vote; that he advised several individuals that the votes did not include "paper ballots"; and that he did not at any time indicate a particular number of ballots that might exist or in any way reference any number of paper ballots that might exist.

The district clerk states in her affidavit that voter registration books provided by the Dutchess County Board of Elections were sent to each of the district's six polling places on March 27, 2000; that at that time she also maintained in her office a listing of all district residents who were registered to vote in county elections, as well as a separate listing of all district residents who were registered to vote in school district election; that on March 27, 2000, petitioner Dione Goldin requested and was permitted to view the listing of all district residents who were registered to vote in school district elections; that at approximately 5:02 p.m. on March 28, 2000, a district courier transported the absentee ballots to each of the district's six polling places in locked boxes; that none of the election inspectors at the six election districts reported any confusion or any problems of any kind in tabulating the votes at their respective polling places; that the head inspectors and poll clerks at each of the polling places have certified the election results as being accurate; that the votes reported from each of the polling places included all but four of the absentee ballots sent to them shortly after 5:00 p.m.; that on March 29, 2000, 23 emergency ballots, 9 affidavit ballots and the 4 absentee ballots were transmitted to the district clerk's office and counted, resulting in a final vote on Proposition One of 2,741 yes votes and 2,647 no votes, and a final vote on Proposition Two of 2,639 yes votes and 2,700 no votes. On the record before me, petitioners have failed to establish that any irregularities occurred.

In addition, petitioners have also failed to establish that any alleged irregularities, had they occurred, would have affected the results of the vote. To invalidate the results of a school district election, petitioners must establish not only that an irregularity occurred, but that the irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal ofLawson, supra; Appeal of Chechek, supra), were so pervasive that they vitiated the electoral process (Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162; Matter of Gilbert, 20 id. 174, Decision No. 10,366), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Matter of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, aff'd sub nom, Capobianco v. Ambach and Bd. of Ed., 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 a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Goldman, 35 Ed Dept Rep 126, Decision No. 13,487; Appeal of Roberts, supra). A school district election is presumed to have been legally conducted unless petitioners establish the contrary by competent evidence (Appeal of Crowley, et al., 39 Ed Dept Rep 665, Decision No. 14,345; Appeal of Ferro, 25 id. 175, Decision No. 11,538). To warrant setting aside an election, the improprieties alleged must be substantial and not merely technical in nature (Appeal of Crowley, supra; Appeal of Taylor, 31 Ed Dept Rep 46, Decision No. 12,564). There is no proof in the record that any of the alleged irregularities affected the results of the vote.

THE APPEAL IS DISMISSED.

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