Appeal of the BOARD OF EDUCATION OF THE HONEOYE CENTRAL SCHOOL DISTRICT from actions taken at an annual meeting of the district.

Decision No. 15,259

(July 28, 2005)

 

Harter, Secrest & Emery, LLP, attorneys for petitioner, Bethany A. Centrone, Esq., of counsel

 

MILLS, Commissioner.--Petitioner, the Board of Education of the Honeoye Central School District, seeks an order pursuant to Education Law §2037 annulling the results of the district's May 17, 2005 school board election as related to candidates Keith Stumbo ("Stumbo") and Douglas Kraft ("Kraft").  The appeal must be sustained in part.

On May 17, 2005, petitioner conducted its annual meeting, which included an election to fill two seats on the board of education.  At the time of the election, Stumbo was president of the board of education and was seeking another term.  Following the close of the polls and count of the votes, Sally Blackmer and Stumbo were declared the winning candidates with 676 and 467 votes, respectively.  Kraft was determined to have received 458 votes, and two other candidates received 254 and 149 votes, respectively.

     Petitioner alleges that the vote count is incorrect because it is based upon an election inspector's misreading of the absentee ballot vote tally, which resulted in Stumbo being credited with ten more votes than he actually received.  Petitioner also alleges that there are discrepancies in the number of absentee ballots reported by the district clerk to have been received in the election, and that following the election, the absentee ballots were left unsealed in the district's safe, to which several individuals had access. 

Petitioner seeks a determination that the election of Stumbo over Kraft is invalid and that I order a special district meeting for the purpose of a run-off election between these two candidates or, in the alternative, that I order the district to recanvass the ballots cast for the board of education candidates on May 17, 2005.

To invalidate the results of a school district election, a petitioner must establish not only that irregularities occurred, but that the irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Huber, et al., 41 Ed Dept Rep 240, Decision No. 14,676), were so pervasive that they vitiated the electoral process (Appeal of Laurie, 42 Ed Dept Rep 313, Decision No. 14,867; Appeal of Meyer and Mittelstaedt, 40 id. 34, Decision No. 14,413), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Huber, et al., 41 Ed Dept Rep 240, Decision No. 14,676; Matter of Levine, 24 id. 172, Decision No. 11,356, affd sub nom, Capobianco v. Ambach and Bd. of Ed., Glen Cove City School Dist., 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 Meyer and Mittelstaedt, 40 Ed Dept Rep 34, Decision No. 14,413; Appeal of Goldman, 35 id. 126, Decision No. 13,487).  Petitioner has the burden of establishing all the facts upon which it seeks relief (8 NYCRR §275.10; Appeal of Gravink, 37 Ed Dept Rep 393, Decision No. 13,888). 

Petitioner submitted the vote tally sheets as exhibits to the affidavit of its district clerk.  On vote tally sheet #2, the number of absentee ballots cast for each candidate was recorded as a series of hash marks, followed by an arabic number representing the total number of hash marks.  It is clear from the tally sheet that, in the entry for absentee ballots for Stumbo, the sixth hash mark was read together with the arabic number "6" to credit the candidate with 16 votes instead of the six votes the hash marks were intended to represent.  This incorrect amount was then included in Stumbo's total vote tally of 467.  If the vote totals are recalculated using six absentee votes instead of 16, then Stumbo received 457 votes, placing him in third place behind Kraft's 458 votes.  Therefore, it is undisputable that the miscount affected the results of the election, and Kraft should have been declared the winner by one vote to the second seat on the board.[1] 

Nevertheless, petitioner contends that there were other irregularities with the absentee ballots.  Specifically, petitioner alleges that after the election, the absentee ballots were left unsealed and placed in a district safe to which many individuals had access; that the district clerk conducted an unsupervised recount of the absentee ballots the day after the election; and that the district clerk inconsistently stated the number of absentee ballots received by the district at a special meeting held on May 23, 2005 to discuss the miscount. 

However, petitioner merely speculates that these irregularities raise "doubts about the integrity of the absentee ballots," and has failed to establish that the irregularities affected the results of the election.  Although the ballots were allegedly left unsealed in a district safe, petitioner fails to establish, or even allege, that the ballots were tampered with.  Furthermore, while the district's clerk's unsupervised recount did lead to her discovery of the discrepancy involving the hash marks, there is nothing in the record to establish, and petitioner does not allege, that the recount otherwise affected the election results. 

Petitioner provides an affidavit from Stumbo alleging that at a special meeting held on May 23, 2005 to discuss the miscount, the district clerk inconsistently stated the number of absentee ballots received by the district to be anywhere from 25 to 23.  However, there is nothing in the record that establishes the context in which the district clerk's statements were made.  Furthermore, petitioner has submitted an affidavit of the district clerk in which she unequivocally states that 22 valid absentee ballots were received by the district.  This statement is consistent with the statement attributed to the district clerk in the Stumbo affidavit that a total of 25 absentee ballots were returned to the district, 3 of which were rejected as defective.  Thus, on the record before me, I find that petitioner has failed to establish an inconsistency in the number of absentee ballots received by the district so as to require a recanvass of the ballots or a new election.

In conclusion, I find that the record establishes that Kraft defeated Stumbo by one vote and should have been seated on the board together with Sally Blackmer, as a result of the May 17, 2005 election.  It is understood that Stumbo was a de facto member of the board until the date of this decision, and his participation in actions of the board do not invalidate such actions (Appeal of Titus, 36 Ed Dept Rep 407, Decision No. 13,762).

 

THE APPEAL IS SUSTAINED IN PART.

 

IT IS ORDERED that the action of petitioner board of education, in declaring Keith Stumbo to be the winner of a seat on the board of education as a result of the board election held on May 17, 2005, is annulled; and

 

IT IS FURTHER ORDERED that Douglas Kraft be declared the winner of such seat and a member of the Board of Education of the Honeoye Central School District.

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