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Decision No. 16,878

Appeal of the BOARD OF EDUCATION OF THE HEMPSTEAD UNION FREE SCHOOL DISTRICT from the actions of Gwendolyn Jackson, Shelley Brazley, Caprice Rines, David Gates, Maribel Touré, Hans Thevenot and Jeff Spencer regarding an election.

Decision No. 16,878

(February 16, 2016)

The Scher Law Firm, LLP, attorneys for petitioner, Austin Graff, Esq., of counsel

Frederick K. Brewington, Esq., attorney for respondents Gwendolyn Jackson and Maribel Toure

Miller Law Offices, PLLC, attorneys for respondents Shelley Brazley and David Gates, Scott J. Farrell, Esq., of counsel

ELIA, Commissioner.--Petitioner, the Board of Education of the Hempstead Union Free School District, seeks an order pursuant to Education Law §2037 annulling the results of an election for two seats on the board of education.  The appeal must be dismissed.

On May 19, 2015, petitioner held its annual meeting to obtain voter approval of the district’s proposed budget for the 2015-2016 school year and to elect candidates to fill two seats on the board of education.  The election resulted in the approval of the 2015-2016 budget, which is not being challenged in this appeal. 

With respect to the board member candidacies, the election resulted in the following vote tallies:

1.Respondent Maribel Touré received 678 votes;

2.Respondent Gwendolyn Jackson received 500 votes;

3.Respondent Shelley Brazley received 457 votes;

4.Respondent David Gates received 437 votes;

5.Respondent Jeff Spencer received 384 votes;

6.Respondent Hans Thevenot received 148 votes; and

7.Respondent Caprice Rines received 105 votes.

At a special meeting held on May 20, 2015, petitioner initially voted to certify the election results, both as to the budget and the board of education candidacies.  However, upon a motion made by respondent board member Brazley, petitioner subsequently convened in executive session “to address concerns and questions raised by the public in reference to the results.”  After reconvening in open session, petitioner then voted to “not accept, approve, or certify” the election results regarding the board of education candidacies and to direct the district’s attorneys to petition the Commissioner to order a re-vote on such candidacies.  This appeal ensued.  Petitioner’s request for interim relief to stay the swearing-in of any person to fill the two open seats on the board of education pending a final determination in this appeal was denied on July 1, 2015.

Petitioner alleges certain improprieties and misconduct, including illegal activity, that petitioner contends became so pervasive as to vitiate the fundamental fairness of the election and affect the outcome of the election.  Specifically, petitioner alleges that respondents Jackson and Touré filed defective campaign expenditure reports and that the role of money in the election was so severe and pervasive that it vitiated the fundamental fairness of the election; that campaign workers for respondents Jackson and Touré engaged in threats and fraud to gain entry into voting booths with voters for purposes of influencing voters; that attorneys acting on behalf of the Jackson and Touré campaigns engaged in misrepresentation to infiltrate the voting room and act as unauthorized “poll watchers”; that a campaign manager for the Jackson and Touré campaigns engaged in improper electioneering within twenty-five feet of the polling place; and that irregularities in the absentee ballot process may have affected the outcome of the election.  Petitioner requests that I issue an order annulling the board election results and directing a new election be held.  

Respondents Gwendolyn Jackson and Maribel Touré deny petitioner’s allegations and contend that the appeal must be dismissed for lack of subject matter jurisdiction, for failure to state a claim upon which relief can be granted, for unclean hands, for estoppel, and for using the Education Law §310 appeal process to conduct frivolous and abusive litigation.  By separate answer, respondents Shelly Brazley and David Gates admit that they are residents of the Village of Hempstead, New York; deny knowledge and information sufficient to form a belief as to petitioner’s remaining allegations; and join in petitioner’s request for relief. 

Respondents Jackson and Touré have submitted a “Supplemental Memorandum of Law in Opposition to the Petition” together with additional affidavits and exhibits.  Section 276.4 of the Commissioner’s regulations requires respondents to serve a memorandum of law on petitioner in accordance with §275.9 within 30 days after service of the answer or 20 days after service of the reply, whichever is later.  In this case, although the document is entitled “Supplemental Memorandum of Law,” it was served within 30 days after service of the answer and I have therefore accepted it for consideration as a memorandum of law.  However, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, while I have reviewed the memorandum of law submitted by respondents Jackson and Touré, I have not considered those portions that contain new allegations or exhibits.

I will first address respondent Jackson and Touré’s affirmative defenses.  Respondents Jackson and Touré contend, in a general manner and without further specification, that the appeal must be dismissed for lack of subject matter jurisdiction.  However, I find that I have jurisdiction to decide this appeal pursuant to Education Law §2037, which provides that:

All disputes concerning the validity of any district meeting or election or of any of the acts of the officers of such meeting or election shall be referred to the commissioner of education for determination and his decisions in the matter shall be final and not subject to review.  The commissioner may in his discretion order a new meeting or election.

I therefore find no basis to dismiss this appeal for lack of subject matter jurisdiction.

Respondents next contend that the appeal must be dismissed for failure to state a claim upon which relief can be granted.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  The gravamen of the petition is that the election results should be annulled and a new election ordered because there allegedly were pervasive improprieties that vitiated the election results and the fundamental fairness of the election, and irregularities that actually affected the outcome of the election.  Furthermore, the petition alleges specific instances of such improprieties and irregularities as summarized above.  On the record before me, I will not dismiss this appeal for failure to state a claim.

With respect to the contentions that the appeal must be dismissed for unclean hands, for estoppel, and for using the Education Law §310 appeal process to conduct frivolous and abusive litigation, these defenses are pleaded in a bare, conclusory manner with no accompanying allegations of fact to further specify and support such contentions.  Accordingly, I find that respondents have failed to carry their burden of proof with respect to such affirmative defenses and I will not dismiss the appeal on such grounds. 

Finally, I note that the petition includes a copy of a newspaper article.  It is well-settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of McFeeley, 53 Ed Dept Rep, Decision No. 16,598; Appeal of Parris, 51 id., Decision No. 16,261).  Therefore, I have not considered such article for the veracity of its content.

I will now address the merits.  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, 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 possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Antaki and Mosman, 47 Ed Dept Rep 228, Decision No. 15,678; judgment granted dismissing petition, Antaki and Mosman v. Mills and Bd. of Educ., Pleasantville UFSD, Sup. Ct., Albany Co., [Platkin, J.], May 30, 2008, n.o.r.; Appeal of Marchesani, 44 id. 460, Decision No. 15,232).  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).

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).

Petitioner alleges several instances of alleged misconduct and irregularities that petitioner contends pervasively affected the election process so as to vitiate the fundamental fairness of the election and affected the outcome of the election.

Petitioner alleges that respondents Jackson and Touré filed defective campaign finance disclosure reports.  The record shows that on May 18, 2015, Jackson filed two reports – the first report (due on April 20, 2015) states that Jackson had no campaign expenditures and received no contributions; the second report (due on May 14, 2015) states that her only expenditures were for personal expenses not exceeding $500 and total contributions did not exceed $500.  The record further shows that on May 18, 2015, respondent Touré filed two reports – the first report (due April 20, 2015) states that Touré had no campaign expenditures and received no contributions; the second report (due May 14, 2015) states that Touré’s expenditures and contributions each exceeded $500 and that respective itemized statements of expenditures and contributions were attached to the report.  However, no such statements are attached to the report. 

Petitioner argues that these reports should be interpreted as reflecting Jackson’s and Touré’s expenditures and contributions as of May 18, 2015, the date the financial disclosures were both executed.  Therefore, petitioner asserts, since the reports are inconsistent in that both Jackson’s and Touré’s first reports state there were no expenditures or contributions and the second reports state that Jackson’s expenditures and contributions did not exceed $500 and Touré’s expenditures and contributions exceeded $500, one of each of their respective reports must be materially false and thus constitute perjured statements.  However, I note that each report refers to a due date and thus can be interpreted as reflecting Jackson’s and Touré’s respective expenditures and contributions as of each due date, even though executed on the same date.  On the record before me, I find the latter interpretation persuasive. 

In any event, even if I accept for the purpose of argument that one of each of the candidate’s respective reports is materially false, petitioner has failed to establish that such reports affected the results of the election.  Likewise, petitioner has failed to establish that Touré’s omission of itemized lists of her expenditures and contributions exceeding $500 affected the results of the election. 

Furthermore, to the extent petitioner alleges respondent Touré failed to submit itemized statements of her campaign’s expenditures and contributions in violation of Education Law §1528, a candidate’s incomplete statement of election expenditures is, in and of itself, an insufficient basis for setting aside election results (Appeal of Johnson, et al., 45 Ed Dept Rep 320, Decision No. 15,334). Pursuant to Education Law §1530, enforcement of the filing requirements is by means of a proceeding instituted in the Supreme Court of the State of New York, and is therefore outside the jurisdiction of the Commissioner of Education (Education Law §1530; Appeal of Reese, et al., 49 Rep 328, Decision No. 16,044; Appeal of Johnson, et al., 45 id. 320, Decision No. 15,334; Appeal of Donnelly, 33 id. 362, Decision No. 13,079).

Petitioner contends that the role of money in the election was so severe and pervasive that it vitiated the fundamental fairness of the election.  However, other than petitioner’s conclusory allegation made “upon information and belief” that the Nassau County Democratic Party financially supported the Jackson and Touré campaigns, which allegation respondents Jackson and Touré deny, there is nothing in the record to support petitioner’s contention.  Respondent Jackson submits an affidavit stating that while she “ran on a ticket” with respondent Touré’s campaign, she and Touré maintained separate finances and filed separate disclosure forms.  On the record before me, petitioner has failed to carry its burden to establish that the role of money in the election affected the results of the election or was otherwise so severe and pervasive that it vitiated the fundamental fairness of the election.

Petitioner next contends that campaign workers for respondents Jackson and Touré committed fraud to gain entry into voting booths with voters for purposes of influencing their votes.  Petitioner alleges that on the day of the election, Mimi Pierre Johnson, a campaign manager for the Jackson and Touré campaigns, appeared less than 25 feet from the voting booths and loudly challenged the impartiality of the District’s Spanish translators, threatened that she would send her own translators into the voting room, and made an implied threat that there was a large crowd outside and that she did not know if they could be controlled and held back.  Petitioner alleges that Johnson raised the translator issue to provide cover for individuals to accompany Spanish-speaking voters into voting booths to influence them to vote for Jackson and Toure.   Furthermore, petitioner submits an affidavit from Monte Malik Chandler, an attorney for the district, who states that he saw a number of members from the Jackson campaign on multiple occasions engage in electioneering by handing campaign materials to drivers as they entered the driveway of the polling place. 

It appears from the record that, on the day of the election Melissa Figueroa, apparently acting as an unofficial volunteer translator for Spanish-speaking voters, escorted at least one voter into the voting booth, but was subsequently prevented by a district poll worker from entering into the voting booth with three other women.  This resulted in a confrontation between the poll worker and Figueroa which apparently ended after district staff threatened to call the police.  Respondents Jackson and Touré submit an affidavit from Figueroa, in which she denies she misrepresented herself and states that she was serving as a volunteer Spanish-language translator chosen by the voters whom she sought to accompany into the voting booth pursuant to Election Law §8-306(3), which generally provides for assistance “by a person of the voter’s choice” to be given to any voter who requires assistance to vote by reason of blindness, disability or inability to read or write.  However, except in limited circumstances not applicable here, the Election Law does not govern the conduct of school district elections (Election Law §1-102; Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Georges, 45 id. 453, Decision No. 15,380; Appeal of Brown, et al., 43 id. 231, Decision No. 14,980). The record indicates that the district employed four Spanish-language translators to be in the voting room to assist voters who requested Spanish translation.  Petitioner submits an affidavit of W. Scott Kershaw, an attorney for the district, who states that all of the translators were certified as bilingual clerks by the Nassau County Civil Service Commission, and one translator also was on the Nassau County Board of Election list as a certified interpreter.  Since there is no provision in the Education Law, similar to Election Law §8-306(3), that permits translation assistance in voting to be provided “by a person of the voter’s choice”, the district was not required to grant Figueroa access to enter the voting booth with voters for such purpose, and could insist that a voter requiring such assistance use one of the translators provided by the district.  

Nevertheless, the record establishes only one specific instance of Figueroa entering the voting booth with a voter.  Even if I accept petitioner’s allegations that Figueroa misrepresented herself as a relative of a voter and altered her appearance in an attempt to accompany additional voters into the voting booth, this is only one instance, which has not been shown to have affected the results of the election, and the record does not otherwise establish, beyond mere speculation by petitioner, a widespread, pervasive infiltration into the voting booths of individuals on behalf of Jackson and Touré for purposes of improperly influencing voters.  Petitioner has not identified any specific individuals or produced any evidence indicating that such individuals were improperly influenced in such manner.

Neither do I find on the record before me that Mimi Pierre Johnson’s behavior as characterized by petitioner, including allegations of electioneering by Ms. Johnson, or the actions of members from the Jackson campaign in distributing campaign materials, affected the results of the election or were otherwise so severe and pervasive as to vitiate the fundamental fairness of the election.  Proof of improper electioneering alone is not a sufficient basis for invalidating the results of an election – there must be a showing that it affected the outcome of the election (Appeal of Goldman, 35 Ed Dept Rep 126, Decision No. 13,487; Appeal of Cummings, 31 id. 147, Decision No. 12,600).  While petitioner alleges in a general manner that Johnson was talking directly to voters just outside the doors of the voting room and telling them to vote for respondents Jackson and Touré, petitioner has not identified any specific individual(s) to whom such statements were made or any evidence indicating that such statements influenced voters in any way.  Similarly, while petitioner alleges that members of the Jackson campaign were distributing campaign materials to people driving to the polling place, petitioner has not identified any specific individual(s) who received such materials or any evidence indicating that such actions influenced voters.

Petitioner next alleges that attorneys acting on behalf of the Jackson and Touré campaigns engaged in misrepresentations and electioneering in the voting room.  It appears from the record that on the day of the election between approximately 4:30 p.m. to 5:30 p.m., an individual (“unidentified attorney”) came into the voting room and said that he was an independent monitor from the Nassau County Democratic party, that he represented none of the candidates, and that he knew of no election improprieties at that time but came into the polling room to make sure none occurred.  District staff then instructed him to leave the voting room. 

Subsequently, in the early evening, another individual, Keith Corbett, came into the voting room and identified himself as an attorney representing the Jackson and Touré campaigns.  When district staff questioned Corbett on why he was in the voting room, he stated he was investigating voting irregularities with absentee ballots and would seek a judicial order staying the counting of the absentee ballots.  Attorneys for the district determined that, in the absence of a judicial order, Corbett had no authority to be there and escorted him out of the voting room. 

As the polls were closing, Corbett returned and the unidentified attorney referred to above tried to join him in the voting room.  When Corbett acknowledged that the unknown attorney worked with him, district staff escorted the unidentified attorney out of the voting room because it had now appeared to district staff that he had initially misrepresented who he was and why he was in the voting room.  Corbett then proceeded to inform district staff and the voters in the voting room that he had a Nassau County Supreme Court judge on the telephone who was going to issue an order staying the district from counting ballots. However, it was subsequently determined that no judge had issued such order.[1]  While the actions of Corbett and the unidentified attorney may have been disruptive, there is nothing in the record that establishes such actions affected the outcome of the election or vitiated the fundamental fairness of the election.  Petitioner has not identified any specific individuals or produced any evidence indicating that any voters were intimidated or improperly influenced as a result of the actions of Corbett and the unidentified attorney.   

Petitioner also alleges in a general conclusory manner that unnamed attorneys for the Jackson and Touré campaigns, apparently acting as unauthorized poll watchers, were going in and out of the voting room during the day of the election; however, aside from an alleged general statement made by Keith Corbett in a telephone conversation with an attorney for the District that “there were many attorneys in and out of that room all day ... [acting as] poll watchers”, there are no specific facts or evidence in the record to support the nature and extent of such alleged conduct, and no evidence to establish that such conduct affected the outcome of the election or was so pervasive that it vitiated the fundamental fairness of the election.  

Finally, petitioner alleges that irregularities in the absentee ballot process may have affected the outcome of the election.  However, petitioner alleges only one specific irregularity involving absentee ballots.  According to the unsworn statements[2] of Tyrone Mason and Jason Jordan, on May 18, 2015, the day before the election, at about 10 p.m. a woman came to the apartment where they lived and asked to speak to Mason.  The woman held a handful of absentee ballots and handed Mason an envelope with an absentee ballot and stated that she was not telling him who to vote for, but that she wanted him to fill out the ballot.  Mason filled out the ballot and gave it to the woman, who took it and put it with the other ballots she held in her hands.  In his statement Mason explains that he did not mail an application for an absentee ballot to the district for this election, that he is fully capable of voting on his own, and that he was not aware that in order to vote by absentee ballot he had to submit an application to the district with a legally compelling reason why he is unable to vote in person.

Petitioner also submits a May 19, 2015 affirmation by an attorney for the Jackson and Touré campaigns that appears to have been prepared in support of a petition to Supreme Court, Nassau County for Court action “to preserve information, documents and evidence that may exist as to any problems related to [the May 19, 2015] election.”[3]  In the affirmation, the attorney states that he received and verified reports from a poll watcher that there were “dozens of absentee ballots” being hand-delivered by the same individuals, who are not the individual voters, at the single polling place at the district’s middle school.  However, even if this statement is true, there is nothing in the law that prohibits individuals from carrying multiple absentee ballots into the polling place on the day of the election (Appeal of Touré, et al., 54 Ed Dept Rep, Decision No. 16,660) and it would be entirely speculative to conclude that such conduct, of itself, raises serious doubts as to the integrity of the voting process such as would warrant the relief petitioner seeks.   

This appeal is thus distinguishable from Appeal of Touré, et al., 54 Ed Dept Rep, Decision No. 16,660, cited by petitioner, where the results certified by the board yielded a mere 6-vote margin, the irregularities involving absentee ballots were widespread in their effect upon the absentee ballot process and prevented a determination of how many absentee ballots applications were received, how many absentee ballots were issued, and whether such issuances were in all cased valid with respect to the candidacies at issue in that appeal. 

Upon the record before me, I do not find that petitioner’s allegations with respect to absentee ballots, establish that the outcome of the election was affected or establish a pattern of irregularities so pervasive that they vitiated the electoral process.  On this record, petitioner has not carried its burden and the appeal must be dismissed.

Although the appeal must be dismissed, I am compelled to comment on the controversy surrounding the district’s elections in recent years.  As noted above, in 2014, the Commissioner overturned the results of the district’s May 2014 election as between Maribel Touré and Betty Cross (Appeal of Touré, et al., 54 Ed Dept Rep, Decision No. 16,660).  In light of the fact that both the district’s 2014 and 2015 elections have now been subject to challenge, I remind the district and the board of their obligation to comply with the decision and order in Appeal of Touré, et al., including the obligation to conduct all school board elections in accordance with all applicable provisions of law and regulation, and I urge the district and the board to take all steps necessary to ensure that such controversy does not continue and that the district’s leadership and resources are focused on the paramount goal of providing successful outcomes for students.

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE


 

[1] Petitioner submits an affidavit of Leandre John, an attorney for the district, who states that the district, based upon the representations of Corbett, and at the direction of the Chief Clerk of the Supreme Court, Nassau County (per a contemporaneous telephone conversation), agreed to impound the voting machines and absentee ballots until the Court could hear the matter the following day.  Petitioner also submits the transcript of an appearance of the attorneys for the District and attorney Corbett in Supreme Court, Nassau County before Justice F. Dana Winslow on May 20, 2015, at which Justice Winslow stated that the Court did not have jurisdiction over the matter and ended the court appearance.

 

[2] Although both statements contain language indicating that the signatory was “duly sworn” and made the “affidavit under the penalties of perjury, neither was sworn to or signed before a notary public and are thus unsworn (see e.g., Appeal of Cange, 53 Ed Dept Rep, Decision No. 16,532).

 

[3] There is nothing in the record to establish the ultimate disposition of this petition.