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Decision No. 14,815

Appeal of FRANCIS W. GENCORELLI from action of the Board of Education of the Merrick Union Free School District and the Merrick Library Board of Trustees regarding a library election.

Decision No. 14,815

(October 31, 2002)

Ryan & Brennan LLP, attorneys for petitioner, John E. Ryan, Esq., of counsel

Cooper, Sapir & Cohen, P.C., attorneys for respondent board of education, David M. Cohen, Esq., of counsel

Bee, Eisman & Ready, LLP, attorneys for respondent library board, Peter A. Bee, Esq., of counsel

MILLS, Commissioner.--Petitioner, a resident of the Merrick Union Free School District, challenges the conduct of a library election. The appeal must be dismissed.

On April 24, 2002, the Merrick Library Board of Trustees ("respondent library board") held a library election to obtain voter approval of a proposed library budget and a bond proposition to construct a new library, and to elect a library trustee. Based on past experience, respondent library board provided one voting machine with a maximum capacity of 999 votes. After the voting machine reached its maximum capacity at 7:00 p.m., voters used paper ballots. The bond proposition passed by a vote of 587 to 516 and the library budget passed by a vote of 787 to 455. The trustee candidate who had run unopposed was elected with 791 votes. This appeal ensued.

Petitioner claims that the "layout of the buttons" on the voting machine did not conform to the sample ballot provided to voters on the day of the election. Although petitioner does not submit any affidavits from resident voters, petitioner claims that this alleged discrepancy caused confusion and that "many voters" were unable to vote "no" on the bond proposition because they could not locate the "no" button. In support of this assertion, petitioner alleges that all but two residents who used a paper ballot voted on the bond proposition, while apparently only 812 out of 999 residents who used the voting machine voted on the bond proposition. Petitioner also asserts in conclusory fashion that many residents were denied the opportunity to vote because respondents did not provide "reasonable accommodations." For relief, petitioner requests that I annul the results of the bond referendum and budget vote and order a new election.

The Board of Education of the Merrick Union Free School District ("respondent school board") alleges that it is not a proper party to this appeal because it did not conduct the election. Respondent school board also alleges, among other things, that petitioner has failed to establish grounds for the relief sought. Respondent library board alleges that the appeal is untimely and is barred by the doctrine of laches. It also alleges that petitioner has failed to establish grounds for relief.

The appeal must be dismissed against respondent school board inasmuch as it did not conduct the election in question. I note that the Merrick Public Library is a school district public library and pursuant to Education Law "260(7) and (9), respondent library board has authority to conduct an election for any proper library purpose. Both respondents assert that the election was conducted by respondent library board, not by respondent school board, as alleged by petitioner.

I do not find any merit to respondent library board"s contention that the appeal is untimely. An appeal to the Commissioner of Education pursuant to Education Law "310 must be initiated within 30 days of the action or decision complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The election was conducted on April 24, 2002 and petitioner served his petition on May 24, 2002, within 30 days of the election. Accordingly, I find the petition timely.

The appeal must, however, be dismissed on the merits. To overturn an election, petitioner 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 412, 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, petitioner 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 has 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 petitioner seek relief (Appeal of Reynolds, 41 Ed Dept Rep ___, Decision No. 14,604; Appeal of S.H., 40 id. 661, Decision No. 14,578). Upon review of the record, I find that petitioner has failed to meet this burden.

Petitioner has not demonstrated that the difference in layout between the sample ballot and the machine ballot caused voter confusion. Petitioner has not submitted a single affidavit from a voter indicating that he or she attempted to vote "no" on the bond proposition, but was unable to do so because of the layout of the ballot. Petitioner merely asserts that voters were confused by the ballot because a higher percent of those who voted by machine did not vote on the bond proposition. Petitioner"s assertion is entirely speculative and is insufficient to demonstrate that any irregularity affected the outcome of the election. Moreover, there is insufficient proof that the alleged irregularities were so pervasive that they vitiated the electoral process or demonstrate laxity in adherence to Education Law.

I have examined petitioner"s remaining claims and find them to be without merit.

THE APPEAL IS DISMISSED.

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