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Decision No. 15,766

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

Decision No. 15,766

(June 19, 2008)

Girvin & Ferlazzo P.C., attorneys for petitioner, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioner, the Board of Education of the Schroon Lake Central School District, seeks an order pursuant to Education Law §2037 annulling the results of a school board election conducted by petitioner. The appeal must be sustained.

On May 20, 2008, petitioner conducted a special meeting to fill one vacancy on the board.  The vote was held from 12:00 p.m. until 8:00 p.m. and 459 voters appeared and cast their ballots on a voting machine.

On the voting machine ballot, the three candidates were listed vertically in this order: Tina Armstrong (“Armstrong”); Shawn Baker (“Baker”); and Bruce Murdock (“Murdock”).  Voters were instructed to vote for the candidate of their choice by pulling the lever under the candidate’s name.

During the afternoon, the superintendent was notified that there was confusion among the voters as to which lever corresponded to which candidate.  After the polls were closed and the voting machine was secured and opened, it was discovered that 126 voters had used the lever above Armstrong’s name.  Nine additional voters used levers on either side of Murdock’s name and a single vote was registered on a lever which was not near any candidate’s name.  These 136 misplaced votes represented approximately 30% of the votes, and more than Armstrong’s winning margin.[1]

Thereafter, an emergency meeting of the board was held.  During the meeting, a board member advised the board that she heard an election inspector refer to the vote as “compromised,” and another board member indicated that his wife heard an election inspector state that there would be a re-vote.  Both of these comments were allegedly made at the polling place prior to the close of the polls, in front of individuals who had not yet voted.

Petitioner requests an order setting aside the results of the May 20, 2008 special meeting and authorizing petitioner to call a special election to re-vote on the board seat.  All three board candidates join petitioner in its request for relief.

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, Jr., et al., 32 AD2d 990, affd 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, affdsubnomCapobianco v. Ambach and Bd. of Educ., Glen Cove City School Dist, 112 AD2d 640).

The record before me clearly shows that the vote was compromised by confusion among the voters which caused one third of the votes to be misplaced.  In addition, there were comments made at the polling place by the election inspectors that the election was compromised.

In light of the foregoing, I find that the confusion of the voters vitiated the electoral process and that a new vote is necessary to determine the will of the voters (Appeal of Bd. of Educ. of the Goshen Central School Dist., 47 Ed Dept Rep ____, Decision No. 15,721; Appeal of Bd. of Educ. of the Whitehall Central School Dist., 44 id. 246, Decision No. 15,161; Appeal of Bd. of Educ. of the Fonda-Fultonville Central School Dist., 33 id. Rep 682, Decision No. 13,195).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the results of the special meeting conducted by petitioner on May 20, 2008 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 re-voting on the board vacancy presented to the voters on May 20, 2008.

END OF FILE

[1] Based on the levers below the candidates names, Armstrong received 151 votes, Baker 105 votes and Murdock 43 votes.