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Decision No. 15,930

Appeal of the BOARD OF EDUCATION OF THE HYDE PARK CENTRAL SCHOOL DISTRICT regarding a school board election.

Decision No. 15,930

(June 23, 2009)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for petitioner, Daniel Petigrow, Esq., of counsel

MILLS, Commissioner.--Petitioner, the Board of Education of the Hyde Park Central School District, seeks an order pursuant to Education Law §2037 annulling the canvass of votes and certification of election results following the district’s May 19, 2009 school board election, and correcting the canvass.  The appeal must be sustained.

On May 19, 2009, petitioner presented three propositions for voter approval.  Voters were also asked to elect two board members to full three-year terms, which would expire on June 30, 2012, and to elect a member to fill a vacancy, for the remainder of the vacant term, ending June 30, 2009.

Three candidates were on the ballot at the May election.  The two candidates receiving the largest number of votes were to receive full three-year terms, and the single candidate with the largest number of votes would also be elected to serve out the remainder of the vacant term.

Petitioner used six voting machines in the election.  Following the close of the polls, the results of the voting were tabulated as follows:

Proposition No. 1: 2,134 – Yes; 1,382 – No

Proposition No. 2: 2,202 – Yes; 1,556 – No

Proposition No. 3: 2,081 – Yes; 1,137 – No

John Seagren:      394

Steven Mittermaier: 387

Andrew Bradford:   327

The board then convened, received the tabulation from the district clerk, and certified the results of the election, with John Seagren filling the remainder of the vacant term and one of the two full terms and Steven Mittermaier filling the second full term.

Based on the discrepancy between the number of votes received for each of the propositions and those received for each school board candidate, petitioner’s district clerk reviewed the tabulation sheets and discovered that, with respect to the school board election, only absentee ballots and the votes from one of the six voting machines had been counted.  As a result of the retabulation, the corrected results as to the school board election were as follows:

Steven Mittermaier: 1,757

John Seagren:      1,617

Andrew Bradford:   1,458

At a special meeting on May 20, 2009, petitioner authorized the commencement of this appeal to correct the original certification of the election.  Petitioner asks that I determine that Steven Mittermaier received the largest number of votes and that John Seagren received the second largest number of votes.  Petitioner asks that I annul its original action certifying the winners on May 19, 2009, and enter an order correcting the certification, declaring candidates Mittermaier and Seagren elected to full three-year terms and candidate Mittermaier also elected to fill the vacant seat with the term ending June 30, 2009.

Petitioner named Mittermaier, Seagren and Bradford as respondents in this appeal and served each of them with a notice of petition and petition.  All three respondents have submitted letters to my Office of Counsel indicating that they do not object to the relief sought by petitioner.

Based upon the record before me clearly establishing that there was an error in the original tabulation of results, and there being no opposition, I find that the appeal must be sustained.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the actions of petitioner in tabulating and declaring the result of the ballot with respect to election of members of the board of education on May 19, 2009, be, and hereby are, annulled; and

IT IS FURTHER ORDERED that the canvass of votes for candidates for the office of member of the board of education be corrected in conformity with this decision; and

IT IS FURTHER ORDERED that Steven Mittermaier and John Seagren be declared winners of full three-year terms to end on June 30, 2012, and that Steven Mittermaier also be declared the winner of a remainder term to end June 30, 2009.

END OF FILE