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Decision No. 14,861

Appeal of PHILIP J. JULIAN, ALVINA M. MONAHAN, IRENE KUZIORA, DELPHINE WOLOSZYN, ALICE R. KLAJBOR and NORMAN J. KLAJBOR, from action of the City School District of the City of Dunkirk and its Superintendent regarding a district election.

 

 

(April 17, 2003)

 

Hodgson, Russ LLP, attorneys for respondents, Jeffrey F. Swiatek, Esq., of counsel 

MILLS, Commissioner.--Petitioners appeal the results of a budget vote conducted by the Board of Education of the City School District of the City of Dunkirk ("respondent board") on May 21, 2002.  The appeal must be dismissed.

On May 21, 2002, respondent board held its annual election on the district"s budget.  The budget was approved by a margin of 174 votes, with 1,665 yes votes and 1,491 no votes.  Petitioners" request for interim relief was denied on July 11, 2002.  This appeal ensued.

Petitioners contend that respondent superintendent employed improper electioneering and fear tactics to persuade voters to approve the budget at the May 21, 2002 election.  Specifically, petitioners contend that the superintendent contacted Niagara Mohawk Power Corporation ("Niagara Mohawk") to request permission to post signs on power poles urging voters to approve the budget proposition; made statements to the media improperly urging voters to vote in favor of the budget; and threatened to eliminate sports and other programs if the budget was defeated, in an attempt to intimidate voters.  Petitioners also allege that the school district improperly used a leased school bus to transport to the polls student voters who were expected to vote in favor of the budget; and that seventeen-year-old students "may" have been permitted to vote because their names were on the voter registration list provided by the Chautaqua Board of Elections.  Petitioners seek reversal of the budget vote and a new election.  Petitioners also ask that I investigate the district"s operating costs, and consider a State takeover of the district.

Respondents deny that school officials engaged in any improper electioneering or that district funds were used in any manner to urge voters to vote in favor of the budget.  Respondents also deny that seventeen-year-old students were permitted to vote, or that there were any timely objections to any voter"s qualifications on the basis of not having attained the legal voting age.  Respondents further contend that class action status is inappropriate in this appeal, that the appeal is untimely, and that the petitioners failed to serve and name the board of education as a necessary party.

I must first address a procedural issue.  Respondents object to the content of petitioners" reply, contending that the reply contains new matter that should not be considered in this appeal.  Respondents also submitted a supplemental affidavit from the superintendent, to address the assertions raised in the reply.  Petitioners objected to the supplemental affidavit, but submitted an additional reply.

The purpose of a reply is to respond to procedural defenses or new material contained in an 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 included in the petition (8 NYCRR ""275.3 and 275.14; Application of Bean, 42 Ed Dept Rep ___, Decision No. 14,810; Appeal of O"Herron, 40 id. 204, Decision No. 14,461; Appeals of Simpson, et al., 40 id. 5, Decision No. 14,402).  I have reviewed petitioners" reply, and I find that it contains buttressing arguments for the issues already raised in the petition.  The reply also includes factual assertions that were not included in the petition as well as additional claims and legal theories.  I have therefore considered only those portions that respond to respondents" assertions regarding the tax rate, spending costs per pupil in the 2002-03 budget and student test scores, and which address respondents" objections to timeliness and service.  I have not considered either the supplemental affidavit or the supplemental reply, because they simply reargue and buttress previous claims.

The petition must be dismissed because petitioners have made no showing whatsoever that any of the allegedly improper actions by respondents had any effect on the outcome of the election.  To invalidate the results of an election, petitioner must establish not only that an irregularity 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 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), 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, petitioners must establish that the improprieties are substantial and not merely technical in nature (Appeals of Laskas-Gillespie and Warshaw, 40 Ed Dept Rep 568, Decision No. 14,559).

Petitioners have the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Brown, 42 Ed Dept Rep ___, Decision No. 14,760).  In the instant appeal, petitioners have not produced evidence that the alleged electioneering influenced even a single voter, much less that such electioneering affected the outcome of a budget vote approved by a margin of 174 votes.  Similarly, petitioners have not identified a single 17-year old student who allegedly voted in favor of the budget.  In any event, as to the alleged ineligibility of voters, this claim must be dismissed because challenges to the qualifications of a voter must be made no later than the time the voter appears at the polls to vote (Appeals of Laskas-Gillespie and Warshaw, supra; Appeal of Crowley, et al., 39 Ed Dept Rep 665, Decision No. 14,345).  A person who has the right to challenge a voter and permits him or her to vote without such challenge, is not allowed later to object to such voter's participation (Appeals of Laskas-Gillespie and Warshaw, supra; Appeal of Crowley, et al., supra).  The record does not reflect that there were any timely objections to voters on the basis of not having attained the legal voting age, so this claim must be dismissed.

Additionally, as to the electioneering claim and the contention that the superintendent "threatened" voters or conveyed a "message of fear," the only evidence presented by petitioners as to alleged statements made by the superintendent is in the form of newspaper articles. It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Decastro, 41 Ed Dept Rep ___, Decision No. 14,730; Application of Wilson, 41 id. ___, Decision No. 14,663; Appeal of Toftegaard, 25 id. 159, Decision No. 11,532).  I am not in a position, based on the record before me, to make a determination that any statements by the superintendent were inappropriate, due to lack of competent evidence of the content of such statements.  I further note that it is not impermissible perse to state that rejection of the budget may result in the elimination of programs (seeAppeal of Goldin, 40 Ed Dept Rep 628, Decision No. 14,572).    In any event, the record does not establish that any voters were in fact affected by any comments by the superintendent, or that such comments had an actual impact on the outcome of the election (Appeal of Huber, et al., supra).  These allegations must therefore be dismissed.

Petitioners further contend that the superintendent contacted Niagara Mohawk to request that students be permitted to place "vote yes" signs on utility poles. Respondents deny that the superintendent or any other district official initiated or facilitated the placement of such signs, but admit that the superintendent contacted Niagara Mohawk once he learned that students posted signs on the poles.

Respondents acknowledge that a confirmatory letter by Niagara Mohawk to the superintendent, dated May 20, 2002, states that "[a]s requested, Niagara Mohawk Power Corporation will allow the "Vote Yes" signs on our utility poles until tomorrow, May 21, 2002" and that "[t]his letter will allow the Dunkirk School District to have the 1 day extension in order to remove the signs and fasteners..."  The implication of this letter is that the superintendent requested that the signs remain on the utility poles through May 21, 2002.  However, the superintendent has sworn, under oath, that he made no such request.  Because petitioners do not present any affidavits by Niagara Mohawk personnel to rebut the superintendent"s affidavit, I must find that no request was made.  In any event, there is no proof in the record that any voters were influenced by the signs on the utility poles, much less that the signs had an effect on the outcome of the election.  This claim must, therefore, be dismissed.

As to the claim regarding the school bus, respondents admit that Laidlaw permitted free use of one of its school buses to transport eligible student voters to the polling place.  Respondents contend that the idea of bus transportation was initiated by the instructors and students of the district"s history classes as an exercise in civic involvement.  Laidlaw, the company that contracts with the district to provide school bus service, provided the bus at no cost to the district, and transported only students who were of legal voting age.  The superintendent did not initiate the busing, nor was he involved in the plan.

I have previously stated that the use of a district-owned school bus, driven by a district employee, to transport to the polls an incumbent school board member running for reelection and voters from a senior citizens housing facility managed by the incumbent presents the appearance of impropriety (Appeal of Jordan, 39 Ed Dept Rep 551, Decision No. 14,308).  However, in the instant appeal, the bus was not owned by the district, was provided at no cost to the district, there is no allegation that a district employee drove the bus, nor is there any proof that the student voters were specifically targeted by school officials because of their perceived likelihood of voting in favor of the budget.  Under the circumstances presented in this appeal, I cannot conclude that the use of the Laidlaw bus constituted electioneering or presented an appearance of impropriety on the part of respondent board.  In any event, petitioners have not established that the transportation of student voters had any effect on the outcome of the election.

To the extent that petitioners request that I investigate the cost of education in the district, it must be noted that an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of J.W. and C.W., 41 Ed Dept Rep ___, Decision No. 14,629; Application of Downing, 40 id. 396, Decision No. 14,509; Appeal of Allen, 39 id. 528, Decision No. 14,300).  There also is no statutory authorization for a State takeover of the school district, as alternatively suggested by petitioners.

In sum, petitioners have not established that any alleged irregularities actually affected the outcome of the election, were so pervasive that they vitiated the electoral process, or demonstrated informality to the point of laxity in adhering to the legal requirements for a district election.  In view of this determination, I need not address the remaining procedural objections raised by respondents.

 

THE APPEAL IS DISMISSED.

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