Decision No. 15,870
* Subsequent History: Matter of Bennett v Mills; Supreme Court, Albany County; Decision and order granted petition, annulled Commissioner’s determination, and remanded for de novo determination; August 19, 2009; Commissioner issued Decision No. 16,003 following independent investigation; December 15, 2009; petitioner filed motion for reconsideration of Supreme Court decision; December 21, 2009; denied February 3, 2010; new petition filed February 15, 2010 seeking review of Decision No. 16,003; Matter of Bennett v Steiner; Supreme Court, Albany County; Judgment dismissed petition to review; June 30, 2010. *
Appeal of GARY T. BENNETT from actions of the Board of Education of the Massapequa Union Free School District, Christine Lupetin Perrino, Jane Ryan, Richard Krebs, Leslie Dowell, Gary Slavin and Steven Archipolo regarding an election.
Decision No. 15,870
(February 19, 2009)
Guercio and Guercio, attorneys for respondent board and respondents Christine Lupetin Perrino and Richard Krebs, Richard J. Guercio, Randy Glasser and Joady B. Feiner, Esqs., of counsel
Vito V. Mundo, Esq., attorney for respondent Jane Ryan
MILLS, Commissioner.--Petitioner appeals certain actions of the Board of Education of the Massapequa Union Free School District (“respondent board” or “board”) in the conduct of the district’s annual election on May 20, 2008 (“the election”). The appeal must be dismissed.
The election was conducted at four polling sites throughout the district. Petitioner and the six individually-named respondents ran for two open positions as board trustees. Respondents Christine Lupetin Perrino (“Perrino”), an incumbent, and Jane Ryan (“Ryan”) received the highest vote totals of 1,765 and 1,691, respectively, and were elected. Petitioner received one less vote than Ryan.
Petitioner asserts that prior to the election, the board attempted to remove him from the ballot by questioning his residency. He contends that the residency inquiry was undertaken by then-incumbent board members because he had criticized the board. He also asserts that the board violated the Open Meetings Law by voting on the residency issue in executive session.
Petitioner further contends that numerous irregularities in the conduct of the election tainted its outcome. Specifically, petitioner alleges that the machine vote count was unreliable because some voting machines were unlocked and one malfunctioned. Additionally, he contends that there were several irregularities concerning absentee ballots. Petitioner maintains that district officials tampered with the vote tabulation to give Ryan a one-vote victory, that district resources were improperly used to solicit votes for Perrino and Ryan, and that Ryan’s counsel voted by absentee ballot and in person. In light of the one-vote margin of victory by Ryan and the numerous alleged irregularities, petitioner requests that the election be invalidated, that all absentee ballots be rejected and that the vote be recounted without absentee ballots. Alternatively, he seeks a new election or a runoff election between himself and Ryan. Petitioner’s request for interim relief was denied on June 25, 2008.
Respondents deny any misconduct. The board denies that there were any irregularities in the conduct of the election or that any alleged irregularities affected the outcome of the election, and asserts that the votes were accurately tabulated. The board also maintains that neither petitioner nor his wife voted in the election.
Initially, I must address two procedural matters. Additional affidavits, exhibits and other supporting papers may only be submitted with the permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443). Several letters from the parties, including affidavits and exhibits, were submitted after the deadline for the submission of papers in this appeal. While I have reviewed them, I have not considered any materials raising new issues and introducing new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).
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 to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
A significant portion of the petition concerns the pre-election challenge to petitioner’s eligibility as a candidate and the residency hearing conducted by the board. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508). Since the board voted to accept petitioner’s nominating petition and petitioner remained on the ballot, this issue is academic and I need not address it further.
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, et al. v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Georges, 45 Ed Dept Rep 453, Decision No. 15,380), were so pervasive that they vitiated the electoral process (Appeal of Georges, 45 Ed Dept Rep 453, Decision No. 15,380; Appeal of Brannon, 42 id. 220, Decision No. 14,830; Appeals of Laskas-Gillespie and Warshaw, 40 id. 568, Decision No. 14,559), 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; Appeal of Levine, 24 id. 172, Decision No. 11,356, affd sub nom; Capobianco v. Ambach, et al., 112 AD2d 640). Implicit in these decisions is the 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 Georges, 45 Ed Dept Rep 453, Decision No. 15,380; Appeal of Collins, 39 id. 226, Decision No. 14,223; Appeal of Roberts, 33 id. 601, Decision No. 13,162).
In addition, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).
The election was conducted at four polling sites. At Fairfield Elementary School (“Fairfield”), at approximately 11:00 a.m., petitioner and two other poll watchers discovered that the rear doors of the voting machines were open and unlocked. Petitioner claims that voting continued even though the machines were unsecured. Petitioner asserts that the district clerk (“clerk”) delayed in calling the Nassau County Board of Elections (“Board of Elections”) but the clerk maintains that she immediately called the Board of Elections upon learning of the open machines. She further avers that the Board of Elections advised her that as long as the key on the side of the machine was turned to the right, it was impossible to tamper with and/or change the count on the back of the machines. The clerk alleges that she verified that the key was in the proper position and maintains that the machines functioned properly. Under these circumstances, I find that petitioner has failed to meet his burden of proving that any machine malfunctioned or that the open doors affected the vote count at Fairfield.
Similarly, I find that petitioner has failed to meet his burden of proving that any machine malfunction affected the vote count at Lockhart Elementary School (“Lockhart”), where a curtain fell off the hooks of a machine at one point during the voting. The clerk avers that the machine was taken out of service until the Board of Elections fixed it, and the machine malfunction did not affect the vote count while it was in service.
Petitioner also alleges that one machine was unlocked when the polls closed at Massapequa High School (“Massapequa”), and, speculating that this might have led to a miscount, he complains that he was denied a recount at that time. Pursuant to Education Law §2037, "[a]ll disputes concerning the validity of any district meeting or election shall be referred to the commissioner of education ..." and the sole method of securing a recount of the vote is pursuant to an appeal to the Commissioner (Appeal of Ell, 34 Ed Dept Rep 394, Decision No. 13,358; Appeal of Senecal, 22 id. 367, Decision No. 10,992; Appeal of Morehouse, 15 id. 27, Decision No. 9060). Furthermore, there is no provision in the Education Law providing for a recount of the votes by the district clerk (Appeal of Ell, 34 Ed Dept Rep 394, Decision No. 13,358; Appeal of Senecal, 22 id. 367, Decision No. 10,992). Accordingly, respondent board committed no violation by not recounting the vote and petitioner has failed to provide evidence that any malfunction or misconduct occurred.
In this case, petitioner has not nearly approached the quantity of proof necessary to overcome the presumption of regularity (compare with Appeal of Kuschner and Pinto, 39 Ed Dept Rep 770, Decision No. 14,375, where machines allowed 67 individuals to vote for two candidates, and voters were not directed to vote for only one; Appeal of Ell, 34 id. 394, Decision No. 13,358, numerous unexplainable mathematical irregularities in vote totals were so pervasive in nature as to vitiate the electoral process).
Regarding absentee ballots, petitioner concedes in his memorandum of law that he is precluded after the election from challenging absentee ballots. He contends, however, that the board’s procedures prevented any timely examination and challenges to those ballots the day of the election, and therefore such procedures vitiated the election results. I find no merit to this claim.
Education Law §2018-a(6) provides that in a district with personal registration, the board of registration must make available in the clerk’s office for public inspection during regular office hours until the day of election a list of all the persons to whom absentee ballots have been issued. Petitioner contends that the board failed to make the absentee voter list available. He submits an affidavit of a district resident who went to the school district administration building between noon and 1:30 p.m. on Friday, May 16, 2008, to examine the list of absentee voters but the clerk’s office was locked and she was told that the clerk was unavailable and she would have to return.
The clerk counters that neither she nor anyone else from the district is aware of this individual presenting herself at the office, and the record shows that the individual’s name does not appear on the district’s visitor sign-in sheet for that date. Respondent board also submits the type-written list of absentee voters it maintained. Given the contradictory evidence, I cannot conclude that any violation occurred, but I remind the district of its statutory obligation to have a list of absentee voters available during regular business hours.
Petitioner asserts that at Fairfield, Board of Election personnel violated Education Law §2018-a(8) by failing to provide his poll watchers with a count of absentee ballots at 5:00 p.m. That section provides that no absentee ballot will be counted unless it is received by 5:00 p.m. on the day of the election. Nothing in §2018-a(8), however, requires that candidates be provided with absentee ballot counts at that time. The election chairperson for each of the four polling sites avers that no absentee ballots were accepted after 5:00 p.m. on election day. Moreover, §2018-a(10) provides that absentee ballots shall be tallied after the closing of the polls.
Where a district provides for personal registration of voters, Education Law §2018-a(10) specifies the procedure for processing absentee ballots once they have been received at the polling place. Section §2018-a(11) further provides that during the examination of the absentee ballots, any qualified voter may object to the ballot for specified reasons. Petitioner contends that his poll watchers at Fairfield, Lockhart and Massapequa were denied the opportunity to challenge the absentee ballots. He submits affidavits from his poll watchers at those sites stating that they observed the machine tally and then when they turned their attention to the absentee ballot tally, the ballots had already been tabulated and they were provided with the final count. Petitioner also submits an affidavit from respondent Leslie Dowell (“Dowell”) who avers that her poll watchers at all four polling sites told her they were denied the opportunity to view or challenge the absentee ballots. Petitioner further contends that the tables at which the ballots were counted were up to 75 feet away from the machines at least one site, and that three ballots were tampered with because they had tape on the outside of the envelopes.
There is no requirement in §2018-a(10) or §2018-a(11) that absentee ballots be opened in the presence of the candidate or their representatives (see Appeal of Georges, 45 Ed Dept Rep 453, Decision No. 15,380). Nor is there a requirement that there be a public announcement as to counting of the absentee ballots (see Appeal of Pappas, 38 Ed Dept Rep 582, Decision No. 14,098) or that the machine votes and absentee ballots be tallied sequentially or in close proximity to each other. In contrast to Appeal of Heller (34 Ed Dept Rep 220, Decision No. 13,288), upon which petitioner relies, where police actually kept the public away from the table where ballots were being examined, there is no evidence here that anyone was physically blocked or prevented from viewing the table at which the absentee votes were counted.
Moreover, each election chairperson for the four polling sites avers that, consistent with §2018-a(10), two election inspectors at each site opened and tallied the absentee ballots in public, and did so in the same room where the machine votes were tallied, albeit away from the machines. It appears that petitioner had multiple poll watchers at each site. Nothing precluded one of petitioner’s poll watchers from observing the absentee ballot count while another observed the machines.
The clerk also avers that no absentee ballots were tampered with, no one was prevented from viewing or challenging absentee ballots, and no challenges were made. The clerk and assistant superintendent further aver that the three taped ballot envelopes were received as sealed and then taped over. In addition, the clerk asserts that she permitted petitioner’s wife to examine these envelopes for tampering and none was discovered. The clerk also asserts that after all absentee ballots were tabulated at Massapequa, which also served as the central site at which the final vote was tallied, they were placed in a box with their respective envelopes. Accordingly, I find that petitioner has failed to meet his burden of proving that respondent board did not ensure the opening of absentee ballots in public or otherwise violated Education Law §§2018-a(10) and (11).
Petitioner objects to the method in which the absentee ballots were transported from the other sites to Massapequa, but fails to provide any evidence of improper procedures or tampering with the ballots. It is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Marchesani, 44 Ed Dept Rep 460, Decision No. 15,232; Appeal of Chechek, 37 id. 624, Decision No. 13,943; Appeal of Kushner, 36 id. 261, Decision No. 13,719).
Petitioner claims that Ryan’s attorney, Vito Mundo (“Mundo”), voted twice in the election. Petitioner asserts that Mundo was present at Massapequa after the polls closed on election day even though he was on the absentee ballot list. Mundo affirms that that he applied for, was issued, and submitted an absentee ballot because he had a scheduled out-of-town business conference on election day, and submits receipts to verify his whereabouts. He also avers that a sudden and unexpected death in the family caused him to leave the conference early and return home, so that he was present on May 20, 2008 even though he had already submitted his absentee ballot. He swears, and the record shows, that he did not sign the registration list. In fact, the registration list has the words “Voted Absentee” stamped over his name in the space for his signature. Therefore, there is no proof of impropriety concerning Mundo’s vote.
Petitioner challenges the tally procedures at Massapequa, and claims that district officials secreted the ballots away in a closed room and altered the vote count. He claims that when the election tabulations were read aloud in front of the poll watchers, he and Ryan each received 1,690 votes. He alleges that at Massepequa, the acting superintendent and other district administrators retired into a separate room with the tabulation sheets and absentee ballots, opened the absentee ballots which had remained out of public view, and emerged with a final vote tally giving Ryan a one-vote victory. He also claims that respondent Gary Slavin (“Slavin”) received an extra vote at that point, raising his total from 1,035 to 1,036, and speculates that since he and Slavin have the same first name, that extra vote may have been his.
The acting superintendent and clerk deny petitioner’s allegations. They maintain that the district’s executive director of assessment (“executive director”) used the coach’s room off the gymnasium only to gain access to a computer terminal and printer and produce a computerized vote tally. The acting superintendent avers that the executive director took the tally sheets and the absentee ballots only after they had been publicly counted and tabulated and placed in a box with the envelopes. The clerk asserts that it is her duty to announce the final vote, which she did only once. She denies that a tie was announced between petitioner and Ryan or that a recount was performed giving Ryan or Slavin an extra vote. Given this evidence, I find no merit to these allegations.
Petitioner repeatedly alleges that respondent board has failed to account for 3,880 votes, and thus the one-vote discrepancy between himself and Ryan is obviously highly significant. He claims that 9,479 votes were cast in the election, whereas the district tally shows 5,599 votes. Petitioner miscomprehends the voting process. The record indicates that the counters on the machines at the four polling sites totaled 5,529, demonstrating that 5,529 individuals actually voted. When the 70 absentee ballots are added, a total of 5,599 individuals voted. Each voter could vote for two different candidates, hence, the number of votes actually cast would be expected to exceed the number of voters. However, since not every voter is required to vote for two candidates, the total of all votes cast for all seven candidates (9,479), while exceeding the number of voters, is not necessarily double the number of voters.
Petitioner also claims that a notarized and certified tally sheet for the trustee election was not provided by respondent board. Such tally sheet is page two of the tabulation of the vote signed by the clerk and notarized; page one tabulates the district and library budget propositions. The results on page two are identical to the individual tallies from the four polling cites. The petitioner cites no requirement for each individual page to be notarized, and indeed there is none.
Finally, petitioner alleges that a private district phone list was used to solicit votes for Perrino and the budget, and a confidential district committee email list was used by Mundo to solicit votes for Ryan. He submits an affidavit from one voter stating that the email influenced him to vote for Ryan instead of Slavin, but he nonetheless voted for petitioner. While a board of education may distribute factual information to educate and inform voters regarding a vote or election, the use of district resources to distribute materials designed "to exhort the electorate to cast their ballots in support of a particular position advocated by the board" violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Maurer, et al., 67 NY2d 672; Appeal of Hager and Scheuerman, 43 Ed Dept Rep 363, Decision No. 15,019; Appeal of Stolbach, 43 id. 218, Decision No. 14,977). It is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election (Appeal of Hager and Scheuerman, 43 Ed Dept Rep 363, Decision No. 15,019; Appeal of Eckert, 40 id. 433, Decision No. 14,520). Even indirect support, such as a school board giving a PTA access to its established channels of communication to parents to espouse a partisan position that the board itself was prohibited from doing directly, has been deemed improper (Stern, et al. v. Kramarsky, et al., 84 Misc 2d 447; Appeal of Hager and Scheuerman, 43 Ed Dept Rep 363, Decision No. 15,019; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876).
Respondents deny that district telephone lists, telephones, equipment, facilities, resources or personnel were used to exhort votes for any candidate or the budget. To the extent that petitioner received information from an individual claiming to have used a PTA phone list, that individual is not a district employee. Regarding the email list, Mundo avers that he requested that Ryan send him a copy of her flier, which he, on his own accord, attached to an email and sent it to all members of the district finance committee. Ryan avers that she never requested nor received any phone or email list from the district or any other source and did not use any phone banks during her campaign. Accordingly, there is no evidence that district funds or resources were used to support any candidates.
In sum, petitioner has failed to meet his burden of proof to establish that there were voting irregularities that affected the outcome of the election. Therefore, there is no factual basis upon which to order a recount or a new election.
I have reviewed petitioner’s remaining contentions and find them without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 According to respondent board’s Exhibit 13, the district uses personal registration.