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Decision No. 16,494

 

 Appeal of AUDREY M. TOUSSAINT from action of the Board of Education of the Ravena-Coeymans-Selkirk Central School District regarding a school district budget vote.

Decision No. 16,494

(July 1, 2013)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals from action of the Board of Education of the Ravena-Coeymans-Selkirk Central School District (“respondent”) regarding the district’s May 15, 2012 budget vote. The appeal must be dismissed.

On May 15, 2012, respondent held its annual budget vote. The budget for the 2012-2013 school year passed by195 votes, a bus proposition passed by 107 votes, and four individuals were elected to the board.

Although not clearly articulated, it appears petitioner is alleging that improper electioneering took place on the day of the vote. Petitioner alleges that adults and students wore “Vote Yes” t-shirts around and in the polling place. Petitioner maintains that students were near an exit poll table cheering and “high-fiving” anyone who voted “Yes” on the budget. She also claims that students were yelling, “Please, Please, Vote Yes! Please! Please! Do it for us!” in the polling place. Finally, petitioner maintains that the polling area was chaotic and that respondent ran out of “silver discs” which may have allowed a voter to vote more than once.

As relief, petitioner requests an investigation of the budget vote, a comparison of the number of votes cast with the number of voter signatures in the registration book, and a review of cameras in the polling place to substantiate her allegations.

Respondent contends that dismissal of the appeal is warranted because petitioner has failed to establish that any irregularities occurred in the conduct of the vote. Respondent further argues that, even if irregularities occurred, petitioner has not shown that they affected the outcome of the vote. Respondent also maintains that the Commissioner lacks authority to issue advisory opinions.

Initially, I note that petitioner does not seek a cognizable remedy. She does not request annulment of the budget vote but, instead, requests that an investigation be conducted and that the votes and polling place cameras be reviewed. Such relief is not available. An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386,Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).

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., 48id. 348, Decision No. 15,882).

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 AD2d990, affd 26 NY2d 709; Appeal of Caswell, 48 Ed Dept Rep472, 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 Rep428, 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, etal., 112 AD2d 640). Implicit in these decisions is there cognition 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).

Education Law §2031-a prohibits electioneering within100 feet of a polling place. Respondent admits that students and adults advocating for passage of the budget were present along a road near the polling place with “Vote Yes” on their t-shirts and signs. However, petitioner does not allege or prove that such activity took place within100 feet of the polling place. Respondent submits affidavits by its district clerk and its public information specialist in which each avers that the students and adults were not within 100 feet of the polling place. Thus, there is no basis on which to conclude that such activity constituted impermissible electioneering.

Petitioner also alleges that students were near an exit poll table cheering and “high-fiving” anyone who voted “Yes” on the budget. She also claims that students were yelling, “Please, Please, Vote Yes! Please! Please! Do it for us!” in the polling place. Other than her conclusory allegations, petitioner offers no affidavits in support of her claims. In denying knowledge of any such activity, respondent submits affidavits by its district clerk and public information specialist, both of whom were present at the polls. Each avers that she did not observe the alleged activity. The district clerk further avers that no one, including petitioner, reported such activity to her and that, if a report had been made, she would have requested that such conduct cease. Petitioner submits no reply to refute respondent’s submission. On this record, I cannot conclude that the alleged electioneering occurred.

Moreover, petitioner presents no evidence that, even had improper electioneering occurred, the outcome of the budget vote would have been different. The budget passed by 195 votes and, other than her own statement that she was intimidated to vote “Yes” for the budget, she submits no affidavit from any other voter indicating that his or her vote was affected.

To the extent that petitioner is claiming that respondent improperly engaged in partisan activity in support of the budget during the May 15, 2012 vote, such claim must fail. 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., 67NY2d 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).

On this record, petitioner has failed to establish that respondent engaged in partisan activity in the conduct of the budget vote. As noted, respondent admits that students and adults advocating for passage of the budget were present along a road near the polling place with “Vote Yes” on their t-shirts and signs. However, nothing in the record indicates that respondent directed, sanctioned or encouraged such activity or that district resources were used to produce the signs or t-shirts. Similarly, there is no evidence that respondent sanctioned the presence of any adult or student at the polling place wearing a “Vote Yes” t-shirt or that such activity constituted anything other than personal expression on the part of the individual.

Petitioner also alleges that, at the polling place, “they ran out of the silver discs and anyone could have simply stepped in to a voting line and voted more than once.” Respondent acknowledges that it uses “ballot tags” to manage voting at the polls and that it ran out of such tags during the May 15 election and budget vote. However, there is no requirement in Education Law that respondent provide ballot tags at a school district election, and onthis record, I cannot conclude that respondent acted improperly in this regard.

With respect to petitioner’s concerns regarding the accuracy of the number of votes cast, respondent’s district clerk avers that an impartial third party counted the number of voter signatures for comparison against the total number of votes cast and found 48 more votes cast than there were signatures. However, even assuming arguendo, that this reflects improper activity, petitioner presents no evidence that this impacted any aspect of the outcome of the budget vote. As noted, because the budget passed by195 votes, a discrepancy of 48 votes does not affect the outcome.

Although the appeal must be dismissed, I remind respondent to ensure that all annual elections and budget votes are conducted in a manner that avoids even an appearance of impropriety so as to preclude to the extent possible voter confusion and related controversy.

THE APPEAL IS DISMISSED.

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