Decision No. 14,665

(December 17, 2001)

MILLS, Commissioner.--Petitioners challenge the actions of the Board of Education of the Roosevelt Union Free School District ("respondent") regarding the May 15, 2001 election and budget vote. Because both appeals relate to the same election and contain similar allegations, they are consolidated for decision. The appeals must be dismissed.

Petitioners Campbell and Bedard were unsuccessful candidates for election to the board of education. Initially, two seats on the board were open for election, one held by Bedard and the other by Glenn Simmons ("Simmons"). The deadline for submitting nominating petitions for the May 15, 2001 election was April 16, 2001. On or about April 17, 2001, the district clerk received a number of phone calls regarding the citizenship of Glen Farquharson ("Farquharson"), a candidate for Bedard's seat. By letter dated April 19, 2001, Farquharson withdrew his candidacy. Respondent then reopened the period for submitting nominating petitions for that seat. Mark Davis ("Davis"), a member of the board, resigned effective April 15, 2001 and respondent opened a nominating period for that seat. Respondent also reopened the nominating period for the seat held by Simmons. Respondent established May 4, 2001 as the new deadline for the submission of nominating petitions for all vacant seats.

During the extended nominating period, Kathleen Abel ("Abel") submitted a nominating petition for Bedard's seat. Petitioner Campbell's nominating petition for Bedard's seat was revised by respondent's staff to reflect the extended nominating period. Apparently, another candidate also submitted a nominating petition for the Davis seat, but no other nominating petitions were received for the Simmons seat.

Respondent held informational budget hearings on several dates in late April and early May, with the last one being held on May 8, 2001. Official notices published in local newspapers stated that the May 8, 2001 hearing was scheduled to be held at 7:30 p.m. at the junior-senior high school. At some point, respondent changed the location of the hearing to the Ulysses Byas Elementary School and changed the time to 6:00 p.m. Thereafter, respondent distributed a district flyer listing the revised time and place.

Respondent also mailed proposed budget information to district voters that stated that the polls would be open until 9:00 p.m. on the date of the election, while the official notices stated that the polls would close at 8:00 p.m. It is undisputed that some voters were turned away at the polls after 8:00 p.m. Abel was elected to Bedard's seat by a margin of 27 votes (petitioners claim the margin was 25 votes). Daphne Adedeji was elected to Simmons' seat by a margin of 75 votes and Ira Gerald was elected to Davis's seat by a margin of 13 votes. The proposed budget was defeated. Petitioners' requests for interim relief were denied on July 2, 2001.

In both appeals, petitioners contend that certain voters were allowed to vote after 8:00 p.m. and assert that respondent should have kept the polls open until 9:00 p.m., as advertised. Petitioners also assert that there was a substantial gap between the number of votes registered by the voting machines (727) and the number of voters recorded on the poll lists (allegedly 321 or 359). Petitioners allege that the poll lists contain errors such as incorrect voter addresses and one voter listed twice. Petitioners also allege that qualified voters were not allowed to vote at the polls and should have been offered affidavits and paper ballots.

The Campbell appeal also raises a number of allegations pertaining to the budget hearing and the reopening of the nominating process. In that appeal, petitioners further allege that the votes were improperly tallied, that the time and location of the May 8, 2001 budget hearing were changed without adequate notice, that the May 8 informational meeting was defective because respondent did not have enough members present to constitute a quorum, that respondent should not have accepted the nominating petition of Farquharson and that respondent miscalculated the extension of the nominating period by calculating it from the date of Farquharson's withdrawal letter. They contend that this alleged miscalculation of the extension enabled candidate Abel to belatedly submit her nominating petition. The Campbell appeal also charges that respondent should not have extended the nominating period for all three seats since respondent is not an at-large district. Additionally, petitioners maintain that Abel's petition was defective because it did not have her name and address at the top of each page, because 18 people signed that were allegedly not qualified voters and because 12 individuals printed their names instead of signing them. Petitioner Bedard also claims that respondent's district clerk told her the deadline was May 2, 2001 while others were told May 4, 2001.

Petitioners request that the results of the May 15, 2001 budget vote and board election be overturned and that I direct a new election. Petitioners in the Coleman appeal confine their request for relief to the board election.

Respondent contends that the petitions should be dismissed as untimely, moot and for failure to join necessary parties. Respondent also alleges that the Campbell petition was not properly verified. Respondent asserts that the nominating process and election were conducted in substantial compliance with applicable laws and regulations and that any irregularities that might have occurred did not affect the outcome of the election.

Initially, I must address several procedural issues. Petitioners in the Coleman appeal 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 Laskas-Gillespie and Warshaw, 40 Ed Dept Rep __, Decision No. 14,559; Appeal of a Student with a Disability, 39 id. 1, Decision No. 14,154). To qualify for class certification, petitioners must set forth the number of individuals they seek to represent (Appeal of Laskas-Gillespie and Warshaw, supra; 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 Laskas-Gillespie and Warshaw, supra; 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' request for class status is denied. However, the appeals may proceed in petitioners' individual names.

Respondent contends that petitioners in the Campbell appeal failed to verify the petition as required by 8 NYCRR "275.5. However, the petition submitted to my Office of Counsel contained the requisite verification. Although petitioners should have included a copy of the verification with the papers served on respondent, I will excuse this omission because petitioners in that appeal are not represented by counsel and my Office of Counsel received a verified petition (Appeal of Hollister, 40 Ed Dept Rep __, Decision No. 14,577).

Respondent also contends that petitioners in the Campbell appeal failed to name and serve necessary parties, namely the successful candidates. 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 McAndrew, 39 Ed Dept Rep 565, Decision No. 14,312; Appeal of Lawson, 38 id. 713, Decision No. 14,124; Appeal of Heller, 38 id. 335, Decision No. 14,048). Section 275.8(a) of the Commissioner's Regulations requires that a copy of the petition be personally served upon each named respondent. An individual must also be clearly 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 Lawson, supra; Appeal of Heller, supra). The copy of the petition delivered to my Office of Counsel contained affidavits of service for two of the three successful candidates. However, none of the successful candidates were named in the caption of the petition or notice of petition and there is no affidavit of service indicating that Ira Gerald, who was elected to the Davis seat, was served. Therefore the Campbell appeal, as it relates to the election of board members, must be dismissed for failure to join necessary parties (Appeal of Heller, supra).

The Campbell appeal, as it relates to the May 15, 2001 budget vote, must also be dismissed as moot. The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a statement of facts which no longer exists or which subsequent events have laid to rest (Appeal of Doro, 41 Ed Dept Rep __, Decision No. 14,596; Appeal of K.M., 39 id. 301, Decision No. 14,243; Appeal of a Student with a Disability, 38 id. 91, Decision No. 13,990). Respondent states that subsequent to the defeat of its initial budget proposal on May 15, 2001, it submitted a revised budget proposal to district voters on August 7, 2001, which was also defeated. Therefore, petitioners' request for a new budget vote has already been satisfied.

Additionally, petitioners' claims concerning the nominating petitions must be dismissed as untimely. An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown in the petition (8 NYCRR "275.16; Appeal of Karpen, 40 Ed Dept Rep 44, Decision No. 14,417). Both appeals were commenced on June 13, 2001. Petitioners allege respondent accepted defective nominating petitions and miscalculated the extension of the filing deadline. To the extent petitioners were aggrieved by respondent's actions, they were so aggrieved when the district clerk accepted the allegedly defective petitions, the last of which was accepted on May 4, 2001 (see, Appeal of Leman and Roujansky, 32 Ed Dept Rep 579, Decision No. 12,919). Petitioners filed their appeal more than 30 days after that date and do not offer any reason for the delay. Accordingly, their claims concerning the nominating petitions must be dismissed as untimely.

I must also address petitioners' replies. 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 in the petition (Appeal of Fuller, 41 Ed Dept Rep __, Decision No. 14,623; Appeal of Hollister, supra). In the Coleman appeal, petitioners present an affidavit from petitioner Bedard with the reply. The affidavit introduces new allegations and buttresses the petition. Therefore, I have not considered it in making my decision. In the Campbell appeal, each petitioner submitted a reply. The replies and a cover letter that accompanies Bedard's reply reargue points made in the petition and contain new assertions. Therefore, I have not considered those portions that constitute new allegations or which are not responsive to new material or affirmative defenses in respondent's answer.

Turning to the merits of the appeals, to overturn an 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 Christe, 40 Ed Dept Rep __, Decision No. 14,514; Appeal of Roberts, 33 id. 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, supra; Matter of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, aff'd sub nom Capobianco v. Ambach, 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). 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). Petitioners have the burden of demonstrating a clear legal right to the relief requested (8 NYCRR "275.10) and the burden of establishing the facts upon which petitioners seek relief (Appeal of Reynolds, 41 Ed Dept Rep ___, Decision No. 14,604; Appeal of S.H., 40 id. ___, Decision No. 14,578).

Petitioners allege that respondent improperly changed the time and place of the May 8, 2001 budget hearing, thereby preventing voters from attending. They further allege that respondent did not have a quorum present at that hearing. Respondent contends that a quorum is unnecessary because the budget hearing is informational in nature and the board did not take any action at the meeting that would require a quorum. Petitioners do not cite any legal authority for their proposition and have, therefore, failed to meet their burden of proof on this matter.

Pursuant to Education Law "1716(1), respondent was required to hold a budget hearing between 7 and 14 days prior to the election. Notice of such hearing must be included as part of the notice of the annual meeting (Education Law "1716[2]). An annual or special district meeting will not be held illegal for want of due notice unless it appears that the failure to give such notice was willful or fraudulent (Education Law "2010).

Respondent states that it held five separate budget hearings during that period, although the legal notices in the newspapers only listed the May 8, 2001 date. Respondent submits a flyer that it distributed listing five budget hearing dates, with the correct time and place for the May 8 hearing. Respondent also states that it posted the correct information on the school's marquee and on the doors of the junior-senior high school. Respondent's interim superintendent further states that on May 8, 2001, he stayed at the Ulysses Byas Elementary School until 9:00 p.m. to ensure that any voters who arrived late due to the error would be able to obtain information on the proposed budget. Petitioners have failed to establish that any voters were denied the opportunity to participate in the budget hearing or that any voters would have cast their ballots differently had it not been for respondent's error. Furthermore, there is no evidence the error was willful or fraudulent. Accordingly, petitioners have failed to meet their burden of proof on this claim and it must be dismissed (Appeal of Leman, 39 Ed Dept Rep 35, Decision No. 14,166). Although this claim is dismissed, I admonish respondent to exercise more care with the content of its legal notices and the scheduling of the budget hearings.

Petitioners contend that respondent refused to allow qualified voters to cast their ballots on May 15, 2001. They further contend that, pursuant to Education Law "2019-a, these voters should have been offered the opportunity to subscribe an affidavit and vote by paper ballot. Respondent states that it employs a system of personal registration pursuant to Education Law "2014 and that the last date on which it accepted registration for the 2001 election was May 7, 2001. Petitioners admit that the voters who were turned away at the polls attempted to register after that date, but claim that respondent's district clerk informed petitioner Bedard that voters could register until May 11, 2001. Copies of the official newspaper notices submitted by respondent indicate that the dates established for the registration of district voters were May 5 and May 7, 2001. Furthermore, respondent contends, and petitioners do not dispute, that these voters did not personally present themselves to register as required by Education Law "2014(2). Therefore, the voters who registered after May 7, 2001 were ineligible to vote in the 2001 election. Additionally, petitioners' only evidence in support of these contentions is an unsworn, unverified petition that lists the names of 16 voters allegedly turned away at the polls. Even if I were to accept this as evidence, there is no indication for whom these voters would have cast their ballots. Therefore, petitioners have not established that allowing these voters to cast their ballots would have affected the outcome of the election.

As to petitioners' contention that these same voters should have been offered paper ballots, the petition states that while the names of these individuals were not on the poll list, the district clerk produced the actual registration forms at the polling place when these voters presented themselves. Therefore, a determination as to their ineligibility to vote was made when they presented themselves at the polls, presumably because of the date of their registration forms. The procedures in Education Law "2019-a ensure that eligible voters whose names do not appear in the registration poll ledgers are able to cast their ballot (Appeal of Rodriguez, 31 Ed Dept Rep 471, Decision No. 12,704). In any event, petitioners did not establish that allowing these voters to cast their ballots would have affected the outcome of the election.

Petitioners also argue that respondent should have kept the polls open until 9:00 p.m. and that certain voters were allowed in to vote after the polls closed at 8:00 p.m. Respondent's official published notice of the polling hours stated that the polls would be open until 8:00 p.m., while several district mailings indicated that the polls would be open until 9:00 p.m. Respondent contends that 8:00 p.m. was the correct closing time, as it had been in previous years, that other widely distributed district mailings listed the correct polling times and that the error in the mailings was inadvertent. Respondent's interim superintendent submits an affidavit asserting that the polls closed at 8:00 p.m. and that no one was allowed to vote after that time and a number of voters were turned away. Petitioners submit a photocopied petition that lists some 32 names and addresses of voters who allegedly appeared at the polls after 8:00 p.m. and were not allowed to cast their ballots. The petition also alleges that respondent "allowed certain other people" to vote after 8:00 p.m. and that these 32 voters would have voted for petitioner Bedard. Unverified signatures submitted in the form of petitions are, however, insufficient to warrant overturning an election (see, e.g., Appeal of Bayer, 35 Ed Dept Rep 333, Decision No. 13,561; Appeal of Hable, 30 id. 328, Decision No. 12,484).

In the Coleman appeal, petitioners submit 12 affidavits of individual voters who claim they were turned away after the polls closed and state that they would have voted for petitioner Bedard if they had been allowed to vote. However, petitioner Bedard was defeated by at least 25 votes. Although the time discrepancy is serious and should have been avoided, petitioners have not met their burden of establishing that the later closing time would have changed the outcome of the election.

As for petitioners' allegations that the poll lists were deficient and contained errors, I note that it is not unusual for discrepancies to exist between the machine count and the sign-in sheets at the conclusion of an election and a discrepancy does not necessarily require that I invalidate an election (see, e.g., Appeal of Laskas-Gillespie, supra; Appeal of Roberts, supra; Appeal of Richter, 17 Ed Dept Rep 70, Decision No. 9,498). While the gap is unusually large in this instance, the record contains no evidence that the outcome of the election was affected by the apparent failure of some voters to sign a poll list (Appeal of Singer, et al., 34 Ed Dept Rep 355, Decision No. 13,339; Appeal of Richter, supra). Furthermore, petitioners' assertion that respondent should have discounted a number of votes registered by the voting machines in order to match the number of voters who signed the poll lists is premised upon their erroneous application of a provision of the Education Law that relates to paper ballots (Education Law "2034).

While I am constrained to dismiss the petitions, I urge respondent to thoroughly review and revise its election procedures as necessary to fully comply with the requirements of the Education Law. Although there is insufficient evidence to warrant overturning this election, it is apparent there is significant room for improvement.

THE APPEALS ARE DISMISSED.

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