Decision No. 16,354
Appeal of ROBERT AMENT from action of the Board of Education of the West Irondequoit Central School District and Superintendent Jeffrey Crane regarding a budget vote and election.
(May 10, 2012)
Harris Beach PLLC, attorneys for respondents, Laura M. Purcell, Esq., of counsel
KING, JR., Commissioner.--Petitioner appeals actions of the Board of Education of the West Irondequoit Central School District (“board”) and Superintendent Jeffrey Crane (together “respondents”) related to the district’s May 17, 2011 budget vote and election. The appeal must be dismissed.
On May 17, 2012, the board conducted its annual district meeting to vote on the proposed 2011-2012 school district budget and to fill two vacant seats on the board. The budget was approved and two individuals who ran unopposed were elected to the board. This appeal ensued.
Petitioner alleges that district election workers improperly instructed voters to “vote for both school board members” in relation to the election. Petitioner also maintains that respondents engaged in improper electioneering by displaying biased material about the district in the polling place.
Petitioner seeks nullification of the results of the May 17, 2011 election and budget vote and asks that I order a re-vote. Petitioner also requests that I reprimand the superintendent and the board.
Respondent alleges that petitioner failed to join necessary parties or properly serve the superintendent. Respondent asserts that there were no irregularities in the conduct of the election and budget vote and, even if an irregularity occurred, petitioner has not demonstrated that it affected the outcome of the votes. Finally, respondent maintains that the Commissioner of Education lacks jurisdiction to grant certain relief requested, such as reprimanding the superintendent.
I must first address a procedural matter. 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed petitioner’s 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.
Turning to the merits, to the extent that petitioner challenges the election to fill the two board vacancies and seeks nullification of the results, the appeal must be dismissed for failure to join 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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). 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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).
Section 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 added)(see Appeal of Schultz, 48 Ed Dept Rep 70, Decision No. 15,796; Appeal of Duffy, 47 id. 86, Decision No. 15,634). Because annulment of the election results would affect the two winning candidates, they are necessary parties to the appeal. However, these individuals are not named as respondents in the caption of the petition nor were they served with a copy of the notice of petition and petition. Accordingly, petitioner’s challenge to the May 17, 2011 election of board members must be dismissed.
With respect to the conduct of the budget vote, petitioner claims that respondents improperly permitted electioneering near the polling place. Specifically, petitioner alleges that a sign in the polling place contained biased, inflammatory and selective information about the accomplishments of the district.
A board of education may use public resources to present objective, factual information to the voters concerning a vote or election (Education Law §1716; Phillips v. Maurer, et al., 67 NY2d 672; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Wallace, 46 id. 347, Decision No. 15,529). However, while a board of education may disseminate information “reasonably necessary” to educate and inform voters, its 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; Stern, et al. v. Kramarsky, et al., 84 Misc 2d 447; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Wallace, 46 id. 347, Decision No. 15,529).
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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). After reviewing the sign to which petitioner objects, I disagree with petitioner’s characterization of the material displayed on it. I find that the sign set forth only factual and statistical information regarding district schools and student achievement and did not improperly exhort the electorate. Therefore, petitioner has not demonstrated that respondent engaged in prohibited electioneering.
Moreover, to invalidate the results of a school district vote, petitioner must establish not only that irregularities occurred, but also a probability that any irregularities actually affected the outcome of the vote (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, 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 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).
It is well settled that mere speculation as to the effect of alleged irregularities provides an insufficient basis on which to annul election results (Appeal of Crawford, et al., 47 Ed Dept Rep 413, Decision No. 15,739; Appeal of Kudlack, 45 id. 272, Decision No. 15,319). Petitioner does not offer an affidavit of even one voter asserting that he or she would have voted differently on the budget but for the posting of the challenged information. Rather, petitioner’s allegations are merely speculative and conclusory and do not warrant overturning the budget vote.
In view of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
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