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Decision No. 15,161

Appeal of the BOARD OF EDUCATION OF THE WHITEHALL CENTRAL SCHOOL DISTRICT from actions taken at a special meeting of the district.

Decision No. 15,161

(January 25, 2005)

Judge & Duffy, attorneys for petitioner, Monica A. Duffy, Esq., of counsel

MILLS, Commissioner.--Petitioner, the Board of Education of the Whitehall Central School District, seeks an order pursuant to Education Law �2037 annulling the results of a special meeting conducted by petitioner. The appeal is sustained.

On November 17, 2004, petitioner conducted a special meeting to obtain voter approval to renovate the kitchen in the Junior-Senior High School building. The vote was held from 12:00 p.m. until 8:00 p.m. and sixty four voters appeared and cast their ballots on a voting machine. After the polls were closed and the voting machine was secured and opened, the district clerk and the election inspectors discovered that the voting machine had malfunctioned in that only one of the sixty four votes cast had registered on the machine. Consequently, the district clerk was unable to certify the results of the election.

Petitioner requests an order setting aside the results of the November 17, 2004 special meeting and authorizing petitioner to call a special district meeting to revote the proposition presented to the voters on November 17, 2004.

The Commissioner of Education will set aside the results of a school district election on the basis of alleged irregularities only when it is probable from the evidence that the irregularities affected the outcome of the election (Boyes, et al. v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Holliday, 42 Ed Dept Rep 242, Decision No. 14,840; Appeal of Huber, et al., 41 id. 240, 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 Educ., Glen Cove City School Dist, 112 AD2d 640).

The record before me clearly shows that the voting machine used in the November 17, 2004 vote had malfunctioned by registering only one of the 64 votes cast. Therefore, I find that the voting machine malfunction vitiated the electoral process and that a new vote is necessary (Appeal of Bd. of Educ. of the Fonda-Fultonville Central School Dist., 33 Ed Dept Rep 682, Decision No. 13,195).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the results of the special meeting conducted by petitioner on November 17, 2004 are hereby annulled; and

IT IS FURTHER ORDERED that petitioner is hereby authorized to call a special meeting of the district for the purpose of revoting on the proposition presented to the voters on November 17, 2004.

END OF FILE