Appeal of CESARE DEFEO from action of the Board of Education of the City School District of the City of Mount Vernon regarding the conduct of an annual election and budget vote.

Decision No. 16,042

(March 31, 2010)

Joseph G. Goubeaud, Jr., Esq., attorney for petitioner

Aiello & Cannick, Esqs., attorneys for respondent, Jennifer A. Fremgen, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals actions of the Board of Education of the City School District of the City of Mount Vernon (“respondent”) regarding the district’s May 2009 election.  The appeal must be dismissed.

On May 19, 2009, the district held its annual school board election and budget vote.  At the close of the polls, the voting machine counts were initially reported by telephone from the various polling sites and preliminarily tallied.  Based on that count, the budget did not pass.  Thereafter, the preliminary tabulation was adjusted based on a comparison of “pragmatic sheets” submitted from each election district that apparently documented the voting results from the districts.  At that point, the budget had passed by five votes.  Absentee ballots were then opened and counted.  The following day, votes by affidavit were counted.  The budget passed by 1568 votes to 1505 votes – a margin of 63 votes.  This appeal ensued.

In his challenge to the May 19, 2009 election and budget vote, petitioner claims that, after the machine votes were tabulated, it was announced that the absentee ballots would be counted the next day and, consequently, he left the polling place.  The absentee ballots actually were opened and counted after petitioner left.  Petitioner asserts that his right to participate and witness an open and public count of the election results was violated.  He requests, therefore, that the results be set aside and a new election and budget vote be held.

The board contends that the appeal must be dismissed for failure to join necessary parties and that the May 19, 2009 election and budget vote was in all respects proper.

First, I will address several procedural issues starting with petitioner’s reply.  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.  The reply also contains a request for “a direction from the Commissioner to review and copy all the absentee votes” prior to rendering a determination.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Application of V.M., 46 Ed Dept Rep 531, Decision No. 15,584; Appeal of Koehler, 46 id. 425, Decision No. 15,553).

To the extent petitioner seeks to overturn the election results, the appeal must be dismissed for failure to join the winning board candidates as necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Moreover, §275.8(d) of the Commissioner’s regulations provides, in pertinent part:

If an appeal involves the validity of a school district meeting or election ... a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent (emphasis supplied).

Petitioner did not serve any of the successful candidates with a copy of the notice and petition nor did he name them as respondents in this appeal.  Accordingly, the appeal must be dismissed for failure to join necessary parties.

The appeal must also be dismissed on the merits.  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, affdsubnom; 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 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).

Petitioner contends that the absentee ballots were not opened in public.  Education Law §2018-a(11), which is made applicable by Education Law §2613 to the board’s election and budget vote, provides that, while election inspectors are examining absentee ballots, “any qualified voter present in the polling place may object to the voting of the ballot contained in any envelope” upon certain specified grounds.  This necessitates the opening of the absentee ballots in public (Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905). 

In addition to the allegations in his verified petition, petitioner submits only one affidavit from Autumn Corcione Lopez, who avers that she was personally present at the May 19, 2009 election, stating that an announcement was made that absentee ballots would be counted the following day.  Petitioner and Ms. Lopez further aver that, in response to the announcement, each left the polling place and that the absentee ballots were impermissibly counted in their absence.  Petitioner also submits an affirmation by his attorney, but the attorney does not assert that he was present at the May 19, 2009 vote. 

In contrast, the board submits two affidavits, one by district clerk Akia Shangai and one by senior clerk Alice Patterson.  Both Shangai and Patterson were present at the May 19, 2009 election and budget vote.  Both state that the public was advised only that affidavit ballots would be counted the following day, as it was necessary for the Westchester County Board of Elections to verify whether those voters were registered.  Both Shangai and Patterson state that the absentee ballots were counted immediately after the machine votes were tabulated after the polls closed and that such count occurred in public view. 

On the record before me, I find that petitioner has failed to carry his burden of proving that any irregularity occurred.  It is impossible to tell from the record whether petitioner and Ms. Lopez merely misunderstood the announcement regarding the counting of affidavit ballots the next day.  Petitioner also has not asserted or demonstrated either the existence of pervasive irregularities that vitiated the electoral process or a clear and convincing picture of informality to the point of laxity in adherence to the Education Law. 

THE APPEAL IS DISMISSED.

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