Decision No. 14,874
Appeal of ALEXANDRA GILMORE and JULIET JORDON"THOMPSON from action of the Board of Education of the Amityville Union Free School District regarding a school board election.
(May 30, 2003)
John Ray and Associates, attorneys for petitioners, John Ray, Esq., of counsel
Guercio & Guercio, attorneys for respondent, Vanessa Sheehan, Esq., of counsel
MILLS, Commissioner.--Petitioners challenge the May 21, 2002 school board election conducted by the Board of Education of the Amityville Union Free School District ("respondent"). The appeal must be dismissed.
Petitioners are residents of respondent"s school district. Petitioner Jordon-Thompson was an unsuccessful candidate in the May 21, 2002 election of board members. Petitioners purport to bring this appeal on behalf of two other unsuccessful candidates, Toni Bean and Sam Williams, as well as school district voters.
During the election, incumbent Bean ran unsuccessfully against candidate Connie Palazzo. Petitioner Jordon-Thompson, Barbara End Trant and Diane M. Koza Egglinger sought election to a vacant board seat, with Egglinger as the successful candidate. Incumbent Williams ran unsuccessfully against candidate Charles Walters.
In tallying the votes at the close of the polls, respondent"s chief election inspector discovered that, on one of the four voting machines, the candidates appearing across Row A on the front of the machine actually corresponded to Row B on the counters on the back of the machine. Similarly, candidates appearing across Row B on the front corresponded to Row C on the back; Row C on the front corresponded to Row D on the back. The election inspectors tallied the votes on that machine accordingly. After the votes on all four machines were tallied, the president of respondent board declared candidates Palazzo, Egglinger and Walters the winners. Respondent approved the minutes of the May 21, 2002 election at its June 18, 2002 meeting.
Petitioners commenced this appeal by service of a notice and petition upon respondent on June 20, 2002. Petitioners challenge the election results, asserting that the votes on the one machine were erroneously attributed to the wrong candidates due to the offset rows. As part of their appeal, petitioners requested interim relief prohibiting the declared winners from being sworn into office or taking any action as board members pending a determination on the merits of the appeal. On July 2, 2002, petitioners" request was denied.
Thereafter, on July 11, 2002, petitioners attempted to join candidates Palazzo, Trant, Egglinger, Walters, Bean and Williams as respondents in this appeal by serving them with an amended notice and petition naming them as respondents. On July 18, 2002, petitioners served respondent with an amended caption to the appeal in which the candidates were included as respondents.
Respondent contends that petitioner Gilmore lacks standing to maintain the appeal, and that both petitioners lack standing to maintain the appeal on behalf of district voters or candidates Bean and Williams. Respondent further claims that the appeal must be dismissed for failure to join necessary parties. Respondent asserts that the conduct of the May 21, 2002 election was in all respects proper.
Preliminarily, I note that I have considered all of the additional pleadings, affidavits and exhibits submitted by them pursuant to "276.5 of the Commissioner"s regulations.
Respondent asserts that petitioner Gilmore lacks standing to maintain this appeal because she was not directly affected by the results of the May 21, 2002 election and, therefore, was not aggrieved within the meaning of Education Law "310. However, a person"s status as a district resident is sufficient to maintain an appeal with respect to the manner in which respondent conducted an election (Appeal of Coleman, et al., 42 Ed Dept Rep ___, Decision No. 14,845; Appeals of Schadtle and Wilcox, 38 id. 599, Decision No. 14,102).
Respondent correctly asserts that petitioners lack standing to maintain the appeal on behalf of candidates Bean and Williams and the voters of the district. While petitioners have standing to bring this appeal on behalf of themselves, they lack standing to assert the rights of others (Appeal of Meyer, et al., 40 id. 34, Decision No. 14,413; Appeal of Schuler, 37 id. 512, Decision No. 13,915). Moreover, I note that respondent has submitted affidavits of Ms. Bean and Mr. Williams in which they state that they do not wish to be part of this proceeding. I also note that, with respect to representing school district voters, petitioners neither seek class status nor submit evidence on which to certify a class.
The petition must be dismissed for failure to join necessary parties. 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 Reynolds, 42 Ed Dept Rep ___, Decision No. 14,853; Appeal of Monahan, 42 id. ___, Decision No. 14,824; Appeal of Holliday, 40 id. 534, Decision No. 14,549). Section 275.8(d) of the Commissioner"s regulations provides in pertinent part: "If an appeal involves the validity of a school district meeting or election, " a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent" (emphasis added). Joinder requires that an individual 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 individual that he or she should respond to the petition and enter a defense (Appeal of Reynolds, supra; Appeal of Monahan, supra; Appeal of Calhoun, 38 Ed Dept Rep 542, Decision No. 14,089).
Petitioners commenced this appeal by service on June 20, 2002 of a notice and petition solely on respondent board. None of the winning candidates were named as respondents or served with the petition. Section 275.1 of the Commissioner"s regulations provides that after an appeal is commenced, "no party shall be joined " except by leave or direction of the Commissioner of Education." Petitioners neither sought nor received permission to join any additional parties as respondents subsequent to commencement of the appeal on June 20, 2002. Thus, petitioners" unilateral attempt on July 11, 2002 to add parties to the appeal by service of an amended notice and petition upon the candidates in the May 21, 2002 election is improper. Having failed to properly join successful candidates Palazzo, Egglinger and Walters, petitioners appeal must be dismissed.
Moreover, I also note that petitioners" July 11, 2002 service of an amended notice and petition upon candidates Palazzo, Egglinger and Walters is untimely. An appeal to the Commissioner must be initiated within 30 days of the decision or action complained of unless the delay is excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioners challenge the manner in which votes were tallied after the polls closed on May 21, 2002. Petitioners July 11, 2002 service of the amended notice and petition occurred more than 30 days later. Although petitioners argue that the 30-day period for initiating an appeal did not begin to run until June 18, 2002 when respondent approved the minutes of the election, petitioners do not set forth any claims regarding respondent board"s actions on June 18 in approving the minutes. Because petitioners challenge the vote tally and declaration of election results that occurred on May 21, 2002, and offer no good reason for their delay, petitioners" attempt to join candidates Palazzo, Egglinger and Walters is untimely (Appeal Gargan, 40 Ed Dept Rep 465, Decision No. 14,528; Appeal of Brousseau, 39 id. 397, Decision No. 14,271; Appeal of Crook, et al. 35 id. 546, Decision No. 13,628).
Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. To overturn an election, petitioner must prove improper conduct on the part of respondent, such as a violation of the Education Law or the Commissioner"s regulations (Appeal of O"Brien, et al., 42 Ed Dept Rep ___, Decision No. 14,868; Appeal of D"Oronzio, 41, id. ___, Decision No. 14,745; Appeal of Maliha, 41 id. , Decision No. 14,716). Petitioner must also establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Grant, 42 Ed Dept Rep ___, Decision No. 14,816) were so pervasive that they vitiated the electoral process (Appeal of Grant, supra), 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'dsubnomMatter of 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 a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of O"Brien, et al., supra; Appeal of Grant, supra). To warrant setting aside an election, the improprieties must be substantial, not merely technical in nature (Appeal of Goldin, et al., 40 Ed Dept Rep 639, Decision No. 14,573; Appeal of Crowley, et al., 39 id. 665, Decision No. 14,345). Moreover, petitioners have the burden of establishing all the facts upon which they seek relief (8 NYCRR "275.10; Appeal of O"Brien, et al., supra; Appeal of Grant, supra; Appeal of Finkel, 41 Ed Dept Rep ___, Decision No. 14,619).
Petitioners have not established any violation of the Education Law or regulations. Petitioners" claims are based upon their disagreement with the manner in which the election inspectors tallied the votes recorded on one voting machine. However, the record supports the manner in which the inspectors tallied the votes. The evidence submitted indicates that the title strips bearing the title of the position for which the candidates ran was placed erroneously over the row on the machine front where the "Row A" candidates were supposed to be. The candidates for Row A appeared one row lower on the front of the machine, and votes for these candidates registered uniformly on the Row B counters at the back of the machine. Similarly, the Row B candidates appeared one row lower on the machine front, and votes for those candidates registered uniformly on the Row C counters at the back of the machine. Likewise, votes for Row C candidates at the front registered uniformly on the Row D counters at the back of the machine. The election officials appropriately attributed the votes registering on the back machine counter rows to the corresponding row of names on the front of the machine, notwithstanding the offset of the row letters. I find that the offset of the rows was technical in nature and did not result in an erroneous tabulation of votes.
Petitioners also assert that the vertical column positions in which the candidates appeared on the ballot confused the voters. Specifically, petitioners assert that, upon drawing the candidates" ballot positions prior to the election, respondent"s attorney stated that the candidates for the first board seat would appear in column 1, candidates for the second board seat would appear in column 2 and candidates for the third seat would appear in column 3. Upon receipt of this information, board candidates published flyers with pictorial representations of a mock ballot with candidates listed under rows 1, 2 and 3. The actual ballot at the election showed the candidates listed under row 1, 3 and 5. Petitioners claim this caused voter confusion. However, a review of the actual ballot indicates that, notwithstanding the listing of candidates in every other row, rather than in consecutive rows, the candidates for each vacancy appeared clearly and accurately in the order originally indicated by respondent"s attorney. Moreover, petitioners have failed to submit any affidavits from any voters who claimed to be confused at the election. Absent such proof, petitioners" claim must fail (See Appeal of Gencorelli, 42 Ed Dept Rep ___, Decision No. 14,815).
In light of the above disposition, I need not address the parties" remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE