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Decision No. 16,253

Appeal of the BOARD OF EDUCATION OF THE BEEKMANTOWN CENTRAL SCHOOL DISTRICT regarding an annual district meeting.

Decision No. 16,253

(June 17, 2011)

Joseph Lavorando, Esq., attorney for petitioner

KING, Jr., Acting Commissioner.--The Board of Education of the Beekmantown Central School District ("petitioner" or "board") seeks an order, pursuant to Education Law §2037, annulling the canvass of votes and certification of results on two propositions following the district's annual meeting.  The appeal must be sustained.

On May 17, 2011, petitioner conducted its annual district meeting, which included votes on the proposed 2011-2012 operating budget in the amount of $38,721,107.00 dollars ("Proposition I"), a proposition for the purchase of four sixty-five passenger school buses not to exceed $424,811.66, including the trading in of four district-owned school buses ("Proposition II"), and an election to fill one seat on the board ("Proposition III").  Petitioner appeals only with respect to Proposition I and Proposition II.

During the annual meeting, at approximately 5:30 p.m., a voter brought to the district clerk’s attention that Proposition I was improperly listed in voting machine number 2 as displaying the 2010-2011 budget proposal, which set forth a proposed operating budget of $37,458,259.00 dollars, instead of the 2011-2012 budget proposal.  After inspecting voting machine number 2 and confirming the error, the district clerk shut down the machine and instructed the election inspectors to not permit any further use of the machine. 

Subsequently, the district clerk again inspected voting machine number 2 and discovered that Proposition II improperly displayed the 2010-2011 bus purchase proposal in the amount of $406,153.00 (to purchase three sixty-five passenger school buses and one forty-eight passenger school bus) rather than the 2011-2012 proposal.  The district clerk verified that voting machine number 2 accurately displayed Proposition III.  The district clerk also inspected and confirmed that all propositions displayed in voting machine numbers 1 and 3, and on the absentee ballot form used by voters, were accurate.  It appears from the record that, during the remainder of the evening, only voting machine numbers 1 and 3 were used for voting.

On May 17, 2011, the election inspectors certified the results for each proposition as follows:

Proposition I - 746 for, 730 against, 5 blank

Proposition II - 784 for, 675 against, 22 blank

Proposition III - 954 for, 1 against, 526 blank

The Inspectors' certification indicates the vote tally with respect to Proposition I was as follows:

(i) Machine No. 1 - 361 for, 341 against, 2 blank (704 total)

(ii) Machine No. 2 - 185 for, 198 against, 0 blank (383 total)

(iii) Machine No. 3 - 184 for, 159 against, 3 blank (346 total)

(iv) Absentee ballots - 16 for, 30 against, 0 blank, O invalid (46 total)

(v) Affidavit ballots - 0 for, 2 against, 0 blank, 0 invalid (2 total)

     The Inspectors' certification indicates the vote tally with respect to Proposition II was as follows:

(i) Machine No. 1 - 374 for, 322 against, 8 blank (704 total)

(ii) Machine No. 2 - 194 for, 185 against, 4 blank (383 total)

(iii) Machine No. 3 - 193 for, 143 against, 10 blank (346 total)

(iv) Absentee ballots - 21 for, 25 against, 0 blank, O invalid (46 total)

(v) Affidavit ballots - 2 for, 0 against, 0 blank, 0 invalid (2 total)

Petitioner contends that, despite prior efforts on the part of the board and superintendent to inform and educate district residents as to the financial ramifications of adoption of the proposed 2011-2012 budget/bus purchase propositions upon the district's tax levy and tax rate per thousand dollars of assessed valuation, the irregularities described above vitiated the electoral process.

Petitioner also alleges that other irregularities in the voting process affected the outcome of the election, including bulk mailing of a district newsletter to district households that overstated the number of positions that may be eliminated if the budget failed to pass, and the wearing/displaying of buttons by some members of the teaching staff promoting a favorable vote on the budget.

Petitioner requests, in the alternative, that I invalidate the results of the vote on Proposition I and Proposition II and authorize petitioner to call a special district meeting to re-vote on such propositions, or affirm the results of the vote on Proposition I and/or Proposition II, and deem the budget propositions, as intended, to have been accepted.

To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also a probability 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905), were so pervasive that they vitiated the electoral process (Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Georges, 45 id. 453, Decision No. 15,380), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, affdsubnomCapobianco 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 Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748; Appeal of Georges, 45 id. 453, Decision No. 15,380).

The failure of voting machine number 2 to display accurate proposition language and appropriations being voted upon deprived district voters using such voting machine of essential information needed to cast their votes.  In fact, the information provided was clearly erroneous.  Therefore, I find that this error vitiated the electoral process, that the will of the voters cannot be accurately determined and that a new vote is necessary (Appeal of Bd. of Educ. of the Schroon Lake Central School Dist., 47 Ed Dept Rep 502, Decision No. 15,766; Appeal of Bd. of Educ. of the Goshen Central School Dist., 47 id. 352, Decision No. 15,721; Appeal of Bd. of Educ. of the Whitehall Central School Dist., 44 id. 246, Decision No. 15,161).

Because I find the vote on Propositions I and II must be annulled on the ground set forth above, I need not determine petitioner's remaining contentions. 

THE APPEAL IS SUSTAINED.

IT IS ORDERED, that the action of petitioner board of education in canvassing and certifying the result of the  May 17, 2011 vote on Propositions I and II be, and hereby is, annulled; and

IT IS FURTHER ORDERED that petitioner is directed to immediately call a special district meeting to conduct a re-vote on its proposed school district budget for the 2011-2012 school year on or before June 30, 2011 and, in its discretion, on Proposition II and to provide notice of such special meeting in accordance with Section 2004 of the Education Law, with the first publication and/or posting of such notice to be at least 10 days prior to such special district meeting.

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