Appeal of DEBRA MARCHESANI from action of the Board of Education of the Harrison Central School District, David Brunner, David Singer, Christine Rinaldi, and Georgia Riedel, Members of the Board of Education, Gene George, District Clerk, Robert Salierno, Director of Business, and George Brunner regarding an election.

Decision No. 15,232

(May 23, 2005)

Mann & Mann, attorneys for petitioner, Monroe Yale Mann, Esq., of counsel

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

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for election to the Board of Education of the Harrison Central School District ("respondent board"), appeals the conduct of a school district election. The appeal must be dismissed.

On May 18, 2004, respondent board held its annual meeting and election for the purpose of voting on its annual budget and filling two seats on respondent board. The voting took place at four polling sites. The budget was approved by 530 votes, Georgia Riedel defeated Christine Rinaldi by 263 votes, and incumbent David Brunner defeated petitioner, 1705 to 1522 -- a difference of 183 votes. This appeal ensued.

Petitioner alleges that the conduct of the election was "fraught with illegalities" related to absentee ballots, affidavit ballots, redistricting of voting boundaries, electioneering, opening and closing of polls, the actions of an election inspector, and the improper elimination of over 190 people from the polling books and lists. Petitioner claims that these alleged violations affected the outcome of the election and requests that I order a new election. She also asserts that respondent board failed to comply with her requests for information under the Freedom of Information Law ("FOIL").

Respondents state that the election was conducted fairly and in compliance with Education Law. Respondents admit that there were slight discrepancies with the election district boundaries and a problem with the voting machines being locked initially at one polling site, but they maintain that these problems were resolved without any effect on the conduct of the election or the election results. Respondents assert that petitioner has not met her burden of proving that any substantial irregularities occurred or affected the outcome of the election. Respondents also assert that the Commissioner does not have jurisdiction over FOIL claims, and in any event, respondent board timely complied with all petitioner's FOIL requests.

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 or exhibits that should have been in the petition (Appeal of O'Brien, et al., 42 Ed Dept Rep 317, Decision No. 14,868; Application of Bean, 42 id. 171, Decision No. 14,810). Similarly, a memorandum of law may not be used to add new assertions that are not part of the pleadings (Appeal of Sbrocchi, 42 Ed Dept Rep 380, Decision No. 14,887; Appeal of Grinnell, 37 id. 504, Decision No. 13,914). Accordingly, while I have reviewed petitioner's reply and memorandum of law, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses in respondents' answer.

To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also that any irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162), were so pervasive that they vitiated the electoral process (Appeal of Brannon, 42 Ed Dept Rep 220, Decision No. 14,830; Appeals of Laskas-Gillespie and Warshaw, 40 id. 568, Decision No. 14,559; Appeal of Roberts, supra), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Christe, 40 Ed Dept Rep 412, Decision No. 14,514; Matter of Levine, 24 id. 172, Decision No. 11,356, affdsubnomCapobianco v. Ambach, 112 AD2d 640). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of an election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Collins, 39 Ed Dept Rep 226, Decision No. 14,223; Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483, Decision No. 12,177).

In addition, petitioner has the burden of establishing all the facts upon which she seeks relief (8 NYCRR �275.10; Appeal of Wierzchowski, 39 Ed Dept Rep 682, Decision No. 14,348). To warrant setting aside an election, petitioner must establish that the improprieties are substantial and not merely technical in nature (Appeal of Morris, et al., 37 Ed Dept Rep 590, Decision No. 13,936; Appeal of Taylor, 31 id. 46, Decision No. 12,564).

I will address petitioner's allegations inseriatim. Petitioner first alleges that respondent board failed to conspicuously post a list of absentee voters at two of the four polling venues, in violation of Education Law �2018-a (6), making it impossible for her or any other qualified voter to challenge absentee voters before the close of the polls. Petitioner, however, misstates the law and its applicability to respondent board. Respondent board adopted a resolution during the 2003-2004 school year discontinuing personal registration of voters. Therefore, �2018-b, not �2018-a, applies.

Moreover, the requirement in both ��2018-a and 2018-b to post a list of absentee voters in a conspicuous place was repealed effective January 1, 2001 (see L. 2000, c. 29, �3). Section 2018-b(7) only requires the district clerk to maintain a list of all persons to whom absentee ballots have been issued, and have the list available for inspection during regular office hours until the day of the election. The clerk avers that he not only complied with this requirement by maintaining a list in his office, but also distributed a copy to each polling site. Accordingly, petitioner's claim is without merit.

Petitioner also asserts that she was not permitted to observe the opening of the lock boxes containing the absentee ballots, and thus was unable to object to or challenge them. The clerk admits that after the close of the polls, he removed the absentee ballots from locked boxes in his office and brought the ballots into a conference room at the administration office, where the ballots were opened in petitioner's presence. The record, therefore, indicates that petitioner had sufficient opportunity to observe and challenge the ballots when they were opened, and she offers no proof that the absentee ballots were otherwise tampered with or miscounted.

Petitioner similarly alleges that she was not permitted to observe the opening of the affidavit lock boxes and that the absentee and affidavit ballots were mixed in the same box. The district clerk avers that the absentee ballots were kept separate from the affidavit ballots, which were placed in locked boxes at each polling site. He avers that the boxes containing 47 affidavit ballots were collected from the four polling sites and brought to the district offices, and that he removed the ballots from the boxes and brought them to the conference room where the candidates were present. He then instructed the candidates that the ballots would not be opened that night because the district needed to verify the voters' residences and there were not enough ballo ts to affect the outcome of the election. The clerk also avers that the following day, he located six additional affidavit ballots from one polling site, for a total of 53 affidavit ballots.

In her reply, petitioner alleges that the six additional affidavit ballots were actually included in the 91 absentee ballots. She cites this misrecording of the ballots as an example of respondent board's lack of accountability and lax conduct of the election. However, petitioner has not demonstrated that the ballots were improperly recorded, nor has she offered any proof that the affidavit ballots were tampered with or miscounted. Moreover, she was defeated by 183 votes, more than the combined sum of the 91 absentee and 53 affidavit ballots (144). In addition, according to the vote tally sheet, petitioner trailed the incumbent by 154 votes even before the absentee and affidavit votes were counted. Accordingly, petitioner has failed to show that any irregularity regarding the ballots occurred or affected the outcome of the election.

Petitioner further alleges that names were missing from the polling books and county registration lists. She submits 190 "new or reactivated voter" sheets filled out the day of the election by voters she claims were left off the lists. Respondents assert that the inclusion or exclusion of names on the registration lists is irrelevant to the conduct of the election because the district does not have a system of personal registration. The only relevance and convenience of the registration books was that those persons whose names appeared in the books did not have to submit identification in order to vote. All others had to submit proof of residency in accordance with Education Law �2018-c, and those voters filled out the "new or reactivated voter" sheet for record-keeping purposes.

Respondents admit that at one polling site, some election inspectors mistakenly required several eligible voters whose names were not on the list to vote by affidavit ballot. Respondents maintain, however, that since these voters were nonetheless permitted to vote, any alleged irregularity did not affect the outcome of the election. I agree. Petitioner does not allege, much less demonstrate, that any voters were disenfranchised because they were not on the registration list. Nor does she show that the fact that voters had to sign a "new or reactivated voter" sheet in any way impacted the outcome of election.

Petitioner asserts that at one polling site it took at least 45 minutes for the voting machines to be unlocked. She alleges that many people left without voting and were not immediately offered the opportunity to fill out paper ballots. Respondents admit that the machines were mistakenly locked, but assert that it took only about 15 to 20 minutes to correct the problem, that four voters who did not want to wait or return later in the day completed affidavit ballots, and therefore this incident did not affect the outcome of the election. Petitioner fails to submit any affidavits from voters who were allegedly prevented from voting, and thus has not met her burden of proof on this issue.

In addition, petitioner alleges that four election districts were "redistricted" without public notice. She asserts that although voters were instructed to vote at their neighborhood elementary school, the boundaries of the election districts were changed so that many voters appeared at the wrong voting site and were instructed to go to a new site. She claims that many voters refused to leave and instead filled out affidavit ballots, but others left and failed to vote. Petitioner alleges that respondent board member David Singer gave verbal permission to the computer company that prepared the polling books to change the boundary lines of each polling place.

Mr. Singer denies that he gave permission to anyone to change boundary lines. Respondents admit that there were slight discrepancies between the published boundaries in the Legal Notices section of the local newspaper, which were accurate, and the boundary list maintained in the clerk's office, which was roughly 98% accurate. The clerk avers that the computer company utilized his list, and the discrepancies were not realized until election day. Consequently, some voters appeared at the wrong polling site and were not allowed to vote there because their names did not appear on the list for that site. The clerk avers that those voters were sent to the correct site, or, if they wanted, they were allowed to vote by affidavit. There is no evidence of malfeasance or intent on respondents' part regarding the discrepancy in boundaries, and petitioner fails to demonstrate that any voters were actually prevented from voting because of the discrepancy.

Petitioner challenges the appointment of George Brunner, incumbent Brunner's father, as an election inspector. Education Law �2025, which authorizes the appointment of election inspectors, contains no restriction barring relatives of board members or candidates from those positions. Therefore, the mere service of an incumbent's relative, without more, is not a reason to overturn the election (Appeal of Goldman, 35 Ed Dept Rep 126, Decision No. 13,487).

Petitioner also alleges that George Brunner improperly assisted voters in the voting booth with the curtain closed and that Mr. Singer electioneered within 100 feet of one polling site in contravention of Education Law �2031-a. Mr. Brunner and Mr. Singer both submit affidavits denying the allegations against them, and petitioner has failed to submit any evidence or affidavits from other voters to the contrary. Therefore, I find her claims to be unsubstantiated.

I must also dismiss petitioner's allegations that respondent board violated FOIL. The Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Public Officers Law �89; Appeals of Tesser and Kavitsky , 42 Ed Dept Rep 341, Decision No. 14,876; Appeal of Rowe, 41 id. 189, Decision No. 14,660).

I have considered petitioner's remaining contentions and find them without merit.  Mere speculation as to the possible existence of irregularities is an insufficient basis to annul election results ( Appeal of Laurie, 42 Ed Dept Rep 313, Decision No. 14,867; Appeal of Brannon, supra). Petitioner has failed to establish that any irregularities affected the outcome of the election, were so pervasive as to vitiate the electoral process, or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.  In the absence of such proof, the election will not be set aside and the appeal must be dismissed (Appeal of Brannon, supra).

THE APPEAL IS DISMISSED.

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