Appeal of the WELLER LIBRARY COMMISSION from action of the Board of Education of the Mohawk Central School District regarding a library proposition.

 

 

(May 30, 2003)

 

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Norman H. Gross, Esq., of counsel

 

MILLS, Commissioner.--Petitioner challenges the conduct of the May 21, 2002 annual election by the Board of Education of the Mohawk Central School District ("respondent") with regard to a library funding proposition.  The appeal must be sustained in part.

At respondent"s annual election on May 21, 2002, district voters were presented with, among other things, a proposition to increase funding for the Weller Library Commission ("petitioner"), a village public library.  511 residents voted in favor of the proposition and an equal number opposed it, resulting in defeat.  This appeal ensued.

Petitioner contends that an "unusually high number" of absentee ballots were cast in this annual election, as compared to the last three.  The record reflects that, for the library proposition, 208 of 1,002 total votes were cast by absentee ballot compared to 12 of 333 in May 2001, 42 of 589 in May 2000 and two of 266 in May 1999.  Petitioner also alleges that the district clerk improperly opened absentee ballots before the polls closed.  Petitioner requests that I investigate the "procedures, practices and results" of the vote, and "overturn" the tie vote, order a new election, or re-calculate the results after "discard[ing] the erroneous absentee ballots." 

By letter dated October 29, 2002, petitioner requested permission pursuant to "276.5 of the Commissioner"s regulations to submit additional information obtained during an investigation of the election by the Mohawk Police Department.  This information includes statements obtained by the police from four absentee voters.  As a result of the investigation, a member of respondent board was charged with three counts of criminal solicitation in the fifth degree, based on allegations that he induced three individuals who were not eligible to vote by absentee ballot to fill out false applications for absentee ballots.

Respondent contends that petitioner has failed to establish any basis to overturn the election.  In addition, by letter dated November 5, 2002, respondent objects to the additional material submitted by petitioner on the ground that petitioner"s claim that absentee ballots were improperly cast is barred because petitioner never availed itself of the procedure available under Education Law "2018-b to challenge any absentee ballots. 

As a preliminary matter, I have accepted the additional material submitted by petitioner because it bears directly on the issues raised in the petition and was not available when petitioner commenced this appeal (see, Appeal of J.F., 42 Ed Dept Rep ___, Decision No. 14,800).

An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Recore, 42 Ed Dept Rep    , Decision No. 14,8856; Appeal of Baker, 39 id. 690, Decision No. 14,350; Appeal of B.B., 38 id. 666, Decision No. 14,113).  Accordingly, the appeal must be dismissed to the extent that petitioner requests an investigation of the election.

To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also that the irregularities affected the outcome of the vote (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Wayne, 39 Ed Dept Rep 518, Decision No. 14,298; Appeal of Pappas, 38 id. 582, Decision No. 14,098), were so pervasive that they vitiated the electoral process (Appeal of Pappas, supra; Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162) or demonstrate a clear and convincing picture of informality to the point of laxity in adhering to the Education Law (Matter of Pappas, supra; Matter of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, aff'dsubnomCappobianco v. Ambach, et al., 112 AD2d 640).  To warrant setting aside an election, the improprieties alleged must be substantial and not merely technical in nature (Appeal of Goldin, et al., 40 Ed Dept Rep 639, Decision No. 14,573).  In an appeal before the Commissioner, petitioner bears the burden of establishing the facts upon which relief is sought (8 NYCRR "275.10; Appeal of Boni, 40 Ed Dept Rep 292, Decision No. 14,483).

Although the Mohawk Police Department conducted a limited investigation, the record reflects that at least three of the four absentee voters interviewed were not eligible to vote by absentee ballot because they were, in fact, able to appear personally on election day.  It appears that those three voters were induced to cast an absentee vote by respondent"s board member, who delivered both the application for an absentee ballot and the ballot to the voters.  Further, two of these voters stated that they did not place their ballots in envelopes before giving them to respondent"s board member.  The fourth voter told police that a man brought her an application for an absentee ballot and filled it out for her, and that she was unsure what she was signing.  She stated that she completed the ballot herself at around 5 p.m. on election day and the man who presented it to her took it with him.

Petitioners did not invoke the procedure established by Education Law "2018-b, which permits a qualified voter to challenge in advance of the election the qualifications of any person whose name appears on the list of voters to whom absentee ballots have been issued.  The Commissioner has held that failure to follow statutory procedures for challenging absentee ballots precludes a party from subsequently challenging an election on the ground that an absentee voter was unqualified (see, Appeal of Karliner, 36 Ed Dept Rep 30, Decision No. 13,644).  However, here petitioner does not solely challenge the qualifications of individual voters, but also alleges fraud supported by evidence suggesting that a board member induced several voters to file false applications.  Furthermore, this apparently was undetected at the time because the board member was somehow able to circumvent the statutory requirements for the handling of absentee ballots.  Under these circumstances, I find that petitioner was not required to utilize the statutory mechanism for challenging the qualifications of a person to whom an absentee ballot was issued before instituting this appeal.

The votes cast by the four absentee voters interviewed by the Mohawk Police Department were improper, either because the voter was available to vote in person on election day, or because the absentee ballots were not handled in accordance with the procedures outlined in Education Law "2018-b.  Accordingly, those votes must be disregarded.  Two of the voters stated they did not vote on the library proposition.  The record does not indicate whether the other two voted on the proposition or how they voted.  Nevertheless, because there was a tie vote on the proposition, it is highly probable that these two ballots affected the outcome.  Under these unique circumstances, I find the probability that the will of the voters was not expressed, because of illegally cast absentee votes, to be too high to allow the election results to stand (see, Appeal of Cobb, 32 Ed Dept Rep 139, Decision No. 12,784).  Accordingly, the results of the May 21, 2002 vote on the library proposition must be set aside.

Additionally, I note that, although petitioner alleges that the district clerk improperly opened and counted certain absentee ballots before the polls closed, there is no evidence that this affected the election outcome.  However, I remind respondent, in the future, to strictly adhere to the provisions of Education Law "2018-b when handling absentee ballots.

I also note that respondent incorrectly asserts that petitioner, a village public library, has authority under Education Law "260(9) to give notice of and to conduct a special meeting concerning the resubmission of a defeated library appropriation.  Education Law "260(9) vests only a school district public library with such authority.

Finally, I am compelled to comment on the disturbing evidence uncovered by the Mohawk Police Department.  It appears that respondent"s board member may have engaged in serious misconduct by inducing several district voters to vote by absentee ballot, even though they were not eligible to do so, or otherwise circumvented the requirements for processing absentee ballots.  This alleged misconduct formed the basis for criminal charges against the board member.  These allegations undermine public confidence in the electoral process.  Respondent should review its election procedures to ensure that such irregularities do not occur in future elections.   

THE APPEAL IS SUSTAINED IN PART. 

IT IS ORDERED that the results of the vote on the library proposition at the May 21, 2002 annual election are hereby annulled; and 

IT IS FURTHER ORDERED that respondent proceed forthwith to call a special district meeting for the purpose of conducting a vote on the library proposition.

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