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Decision No. 14,830

Appeal of HELEN D. BRANNON from action of the Board of Education of the Central Islip Union Free School District regarding an election.

 

 

(January 9, 2003)

 

Kevin A. Seaman, Esq., attorney for respondent

 

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for election to the Board of Education of the Central Islip Union Free School District ("respondent"), challenges the results of a school board election held on May 21, 2002.  The appeal must be dismissed. 

Petitioner alleges irregularities in the manner in which respondent conducted the election.  She alleges that a certain nonresident was permitted to vote and that "a large number of [other] people" voted fraudulently.  She contends that untimely absentee ballots were counted and that some people who voted by absentee ballot were not district residents.  She also questions the residency of another unsuccessful candidate for board membership, Roy DiGensaro.  Finally, she contends that the campaign literature of an unnamed opponent in the election was slanderous and defamatory.  

Petitioner requests that I overturn the election.  She also requests that I review the proof of residency required to register to vote in the district and the addresses of people who voted by absentee ballot.

Respondent denies that any irregularities occurred or affected the outcome of the election.  Respondent also contends that the appeal should be dismissed for failure to join necessary parties.

Initially, I will address the procedural issue.  Petitioner seeks to overturn the election of three candidates to respondent's board.  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 Lawson, 38 Ed Dept Rep 713, Decision No. 14,124; Appeal of Heller, 38 id. 335, Decision No. 14,048).  Section 275.8(d) of the Commissioner"s regulations requires that a copy of the petition be served upon each person whose right to hold office is disputed and such person must be joined as a respondent in the proceeding.  The 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 Heller, supra).

Since petitioner seeks to overturn the results of the board election of May 21, 2002, the rights of the three winning candidates would clearly be affected if the petition were granted.  Petitioner did not name these individuals as respondents in the caption of the petition or in the notice of petition, nor did she personally serve them with copies of the petition.  The appeal must, therefore, be dismissed for failure to join necessary parties.   

Even if it were not dismissed on procedural grounds, the appeal would be dismissed on the merits. To invalidate the results of a school district election, petitioner 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 of Huber, et al., 41 Ed Dept Rep ____, Decision No. 14,676), were so pervasive that they vitiated the electoral process (Appeal of Meyer, et al., 40 Ed Dept Rep 34, Decision No. 14,413; Appeal of Roberts, 33 id. 601, Decision No. 13,162), or demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Huber, supra; 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 Meyer, supra; Appeal of Goldman, 35 Ed Dept Rep 126, Decision No. 13,487).  Furthermore, in an appeal to the Commissioner, petitioner bears the burden of establishing all of the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Boiko, 40 Ed Dept Rep 409, Decision No. 14,513; Appeal of Taylor, 39 id. 368, Decision No. 14,261; Appeal of Trombley, 39 id. 115, Decision No. 14,189) and to demonstrate a clear legal right to the relief requested (Appeal of Boiko, supra; Appeal of Taylor, supra). I find that petitioner has failed to meet her burden of proof in this proceeding.  

Petitioner provides no documentary evidence to substantiate her allegation that one named voter and other people were permitted to vote, although they were not district residents.  Mere speculation as to the possible existence of irregularities is an insufficient basis to annul election results (Appeal of Maliha, 41 Ed Dept Rep ____, Decision No. 14,716; Appeal of Krantz, 37 id. 257, Decision No. 13,853).  In the absence of such proof, the election will not be set aside (Appeal of Krantz, supra).  Petitioner has failed to meet her burden of proof with respect to these claims.

Nor is there any indication that petitioner made any timely challenges with respect to the qualifications of any voters.  A qualified voter may challenge, either prior to or at the district meeting, the qualifications of any other voter (Education Law ""2015[3] and 2019).  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., 39 Ed Dept Rep 665, Decision No. 14,345; Appeal of Fraser-McBride, 36 id. 488, Decision No. 13,783).  A person who has the right to challenge a voter and permits him to vote without such challenge is not allowed to object to such voter's participation (Appeal of Crowley, supra; Appeal of Fraser-McBride, supra).  Accordingly, petitioner's failure to timely object to the qualifications of any voters in a timely manner requires dismissal of these claims.

Petitioner also claims that untimely absentee ballots were canvassed and alleges that some absentee voters were not legal residents.  Both the district clerk and respondent's attorney affirm that the canvassed absentee ballots were received by the statutory deadline.  Petitioner provides no documentary evidence substantiating her allegations that late absentee ballots were canvassed or that nonresidents voted by absentee ballot.  Thus, petitioner has not met her burden of proof with respect to these claims.

I have considered petitioner"s remaining contentions and find them to be without merit.  Since petitioner has failed to establish that any irregularities affected the outcome of the election, were so pervasive as to vitiate the electoral process, or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law, the appeal must be dismissed.

Finally, with respect to petitioner's request that I conduct an investigation of the matters set forth in the petition, it must be noted that an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Allen, 39 Ed Dept Rep 528, Decision No. 14,300; Appeal of Van Zile and Crowell, 37 id. 213, Decision No. 13,846).

THE APPEAL IS DISMISSED.

END OF FILE