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Decision No. 14,840

Appeal of NANCY HOLLIDAY from action of the Board of Education of the Wyandanch Union Free School District regarding a district election.

 

 

(February 28, 2003)

 

Van Nostrand & Martin, attorneys for respondent, David Desmond, Esq., of counsel

 

MILLS, Commissioner.--Petitioner challenges the conduct of a special election held on November 5, 2002 by the Board of Education of the Wyandanch Union Free School District ("respondent") to fill a vacancy on the board.  The appeal must be dismissed.

On September 11, 2002, I issued an order directing respondent to hold a special election on November 5, 2002, to fill a vacancy on the board caused by the removal of a trustee.  Three candidates vied for the position.  Rev. Michael Talbert was certified as the winner with 332 votes, petitioner received 211 votes and the third candidate received 66 votes.  Immediately after Rev. Talbert was declared the winner, petitioner registered a number of objections to the conduct of the election.  This appeal ensued.

Petitioner first contends that the 100-foot electioneering zone markers were placed 25 feet too close to the polling place, which was the gymnasium of the Milton L. Olive Middle School.  Respondent admits that the chairperson of the election received an objection to the markers at approximately 2:00 p.m.  The markers were found to be only 90 feet from the outside doors of the gymnasium, so the markers were moved an additional 10 feet.  Petitioner next contends that, at 10:50 a.m., the removed board member and his wife were inside the school doors handing out flyers with Rev. Talbert"s name.  Respondent replies that, when the chairperson received this complaint, she investigated and did not see anyone distributing flyers or trying to influence voters.  Petitioner further states that she complained of electioneering activity in the school hallway at approximately 1:30 p.m.  The chairperson states in response that she investigated this complaint, and also periodically checked the 100-foot electioneering zone throughout the day.  She did not observe anyone handing out literature or attempting to influence voters.

Petitioner further contends that the successful candidate, Rev. Talbert, improperly used his "Rev." title on the ballot, in violation of State and federal restrictions regarding separation of church and State.  Respondent states that Rev. Talbert"s name was posted on the ballot exactly as it had appeared on his nominating petition and there had been no objection to the nominating petition.  Respondent also contends that there is no prohibition against use of the title "Rev." on the ballot.

Petitioner also alleges that Rev. Talbert harassed her brother, Father Holliday, at Wyandanch High School on November 5, 2002.  Respondent denies any alleged harassment, and contends that, even if the incident happened as alleged, it had nothing to do with the conduct of the election.

Petitioner raised two other objections at the election that were not specifically raised in the petition, namely that people were asked to leave because they were discussing who to vote for, and that respondent"s attorney opened the absentee ballot box to check voters" registrations with the Suffolk County Board of Elections.  Respondent explains that sealed paper ballots were obtained from voters whose names did not appear on the voter registration lists available at the polling place, and were placed in a box.  Upon notice and in front of all interested persons, respondent"s attorney opened the box and recited the names and addresses of the voters from each envelope.  While he and the district clerk retained custody of the ballots, the election chairperson went to a separate room to call the Board of Elections to check the registration of each voter.  Upon her return, she announced the names of the duly registered voters, whose ballots were returned to the box.  Ballots for voters who could not be confirmed by the Board of Elections were kept secured by the district clerk.

Petitioner requests that I determine that the election was invalid and either order a new election or order respondent to appoint someone temporarily to fill the vacancy.  Petitioner also requests that I reprimand those who participated in or benefited by any violation of law, and that I prohibit anyone who had been removed from the board for inappropriate behavior from continuing that behavior at the polling place or on school property.  Respondent requests that I dismiss the petition because petitioner has not shown that any alleged irregularities affected the outcome of the election.  Respondent further contends that petitioner has failed to name and serve the winning candidate, Rev. Talbert, as a necessary party; that the Commissioner lacks jurisdiction to issue reprimands; and that any challenge to Rev. Talbert"s use of the title "Rev." on the ballot is in essence a challenge to the nominating petition and is untimely.

The appeal must be dismissed for failure to join Rev. Talbert as a necessary party.  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 Monahan, 42 Ed Dept Rep ___, Decision No. 14,824; Appeal of Olsen, 42 id. ___, Decision No. 14,761; Appeal of Holliday, 40 id. 534, Decision No. 14,549).  In an appeal to overturn the results of an election, the successful candidate is therefore a necessary party, and failure to join the successful candidate requires dismissal of the appeal (see, Appeals of Campbell, et al., 41 Ed Dept Rep ___, Decision No. 14,665; Appeals of Laskas-Gillespie, et al., 40 id. 568, Decision No. 14,559).

The appeal must also be dismissed on the merits.  To invalidate the results of an election, petitioner must establish not only that one or more irregularities occurred, but that the irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Grant, 42 Ed Dept Rep ____, Decision No. 14,816; Appeal of Huber, et al., 41 id. ___, 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 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 Leman, 38 Ed Dept Rep 683, Decision No. 14,117).  To warrant setting aside an election, petitioner must establish that the improprieties are substantial and not merely technical in nature (Appeals of Laskas-Gillespie, et al., supra).

In the instant appeal, petitioner presents no evidence that any of the claimed irregularities had any effect whatsoever on the outcome of the election.  She does not provide even a single example of any voter being swayed by any of the alleged irregularities.  Petitioner similarly fails to show that any of the alleged irregularities were so pervasive that they vitiated the electoral process, or demonstrated informality to the point of laxity.  The appeal must therefore be dismissed.  In light of this determination, I need not address the parties" remaining contentions.

 

THE APPEAL IS DISMISSED.

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