Appeal of FREDERICK J. GORMAN from action of the Board of Education of the Sachem Central School District regarding election irregularities.

Decision No. 15,222

(May 12, 2005)

Ingerman Smith, L.L.P., attorneys for respondent, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges actions of the Board of Education of the Sachem Central School District ("respondent") relating to the district's June 17, 2004 budget vote. The appeal must be dismissed.

On May 18, 2004, respondent's proposed budget of $244,798,915 was defeated by a vote of 5,891 to 5,223. On June 17, 2004, voters passed respondent's revised budget of $242,798,915 by a vote of 5,533 to 5,021 (the "budget"). This appeal ensued. Petitioner's request for interim relief was denied on August 9, 2004.

Petitioner contends that respondent misrepresented the budget by overstating available funds, overstating the contingency budget, and overestimating State aid. Petitioner further asserts that respondent failed to inform voters that the tax levy associated with the budget was arrived at by applying reserve funds and a fund balance, thereby minimizing the difference between the budget and the contingency budget. Petitioner also alleges that the budget was not available until June 10, that respondent reduced the number of its budget mailings to two, and that respondent did not inform voters of their polling places. Petitioner claims that respondent also engaged in impermissible targeting, exhorting the public to vote in favor of the budget, and permitted others to dispense literature that it could not distribute itself.

Petitioner asks that I nullify the budget vote and order respondent not to misrepresent available funds. Petitioner requests that I order respondent to prepare its contingency budget in accordance with State regulations using the same growth estimate in both its proposed and contingency budgets. Finally, petitioner requests that I order respondent not to promote its budgets, impermissibly target voters or permit others to conduct such activities.

Respondent argues that petitioner has failed to establish that the alleged irregularities affected the outcome of the election, were so pervasive that they vitiated the electoral process or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law. Respondent also alleges that petitioner has not proven that the district improperly exhorted the passage of the budget in violation of Phillips v. Maurer (67 NY2d 672).

Initially, I must address a procedural matter. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been in the petition (Appeal of Cowley, 44 Ed Dept Rep 125, Decision No. 15,121; Appeal of General, 43 id. 146, Decision No. 14,948). Although I have reviewed petitioner's reply, I have considered only those portions that respond to new material or affirmative defenses set forth in respondent's answer.

To invalidate the results of an election, petitioner must establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Shafer, 43 Ed Dept Rep 9, Decision No. 14,900; Appeal of Grant, 42 id. 184, Decision No. 14,816), were so pervasive that they vitiated the electoral process (Appeal of Meyer and Mittelstaedt, 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 (Appeal of Shafer, supra; Appeal of Grant, supra; Appeal of Hubert, supra ). 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 Mead, 42 Ed Dept Rep 359, Decision No. 14,881). Furthermore, in an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (8 NYCRR �275.10; Appeal of General, supra; Appeal of Vazquez, 42 Ed Dept Rep 245, Decision No. 14,841).

Respondent's budget passed by a margin of 512 votes. Even assuming petitioner 's allegations to be true, the appeal must be dismissed because petitioner presents no evidence that any actions by respondent affected the outcome of the vote or that the alleged irregularities were so pervasive that they vitiated the electoral process or demonstrate a clear and convincing picture of informality to the point of laxity. Petitioner does not provide any affidavits from voters who allege that they would have voted differently but for the alleged misrepresentations, irregularities or exhortation. Petitioner provided just one affidavit from someone who failed to vote because he went to the incorrect polling place. Mere speculation as to the effect of alleged irregularities is insufficient to annul election results.

In light of this disposition, I will not address the parties' remaining contentions.

THE APPEAL IS DISMISSED.

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