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Decision No. 16,890

Appeal of JOHN P. GHEZZI, et al.* from action of the Board of Education of the City School District of the City of Albany regarding a bond vote.

Appeal of MARY BETH FARR from action of the Board of Education of the City School District of the City of Albany regarding a bond vote.

Decision No. 16,890

(April 1, 2016)

 

John E. Sweeney, Esq., attorney for petitioners

Honeywell Law Firm, PLLC, attorneys for respondent, Jeffrey D. Honeywell, Esq., of counsel

ELIA, Commissioner.--In two separate appeals, petitioners challenge certain conduct of the Board of Education of the City School District of the City of Albany (“respondent” or “board”) in relation to a February 9, 2016 bond vote.  Because the appeals arise out of the same facts and circumstances, they are consolidated for decision.  The appeals must be dismissed.

According to the record, at the November 3, 2015 general election, the board presented school district voters with a $196 million bond proposal for renovations and improvements to its high school.  The bond proposal was defeated, with 5,883 votes against the proposal and 5,791 votes in favor of the proposal. 

Thereafter, at a special district meeting held on February 9, 2016, respondent resubmitted a revised $179.9 million bond proposal to district voters which reflected a reduction in the cost of renovations and construction.    

According to the district’s Official Certificate of Canvass, dated February 10, 2016, the bond proposal passed, with 3,974 votes in favor of the proposal and 3,785 votes against the proposal – a difference of 189 votes.  These appeals ensued.  On March 4, 2016, I granted interim relief in Appeal of Ghezzi, et al. (“Appeal I”), precluding respondent board from taking any action to implement the February 9, 2016 bond vote regarding the high school construction project pending a determination on the merits of that appeal.  Consequently, a similar request for interim relief in Appeal of Farr (“Appeal II”) was rendered moot.[1] 

In Appeal I, petitioners allege several irregularities with regard to the conduct of the February 9, 2016 bond vote.  Petitioners assert that respondent provided an insufficient number of ballots in violation of Education Law §§2608(3) and 2609(2); that respondent violated voters’ privacy rights and also failed to properly secure ballots in locked ballot boxes; that absentee and affidavit ballots were counted before polls closed; that absentee ballots may not have been automatically provided to certain eligible voters with a permanent disability or illness; that polling sites were illegally crowded with long lines of voters and excessive wait times; that polling sites were not promptly open at 7 a.m. and/or lacked appropriate signage; that poll inspectors lacked proper training; and that respondent failed to keep an inventory of voter sign-in sheets and paper ballots.

In Appeal II, petitioner Farr[2] alleges that respondent engaged in impermissible partisan activity by expending public funds to advocate for the passage of the bond proposal at the February 9, 2016 special district meeting.  

As relief, petitioners seek an order setting aside the results of the February 9, 2016 bond vote and requiring a new vote under supervision of the Albany County Board of Elections (“BOE”).

Respondent contends that petitioners lack standing to maintain Appeal I on behalf of disabled and elderly absentee voters; nor may petitioners maintain that appeal as a class action.  Respondent maintains that petitioners have failed to carry their burden of proof and failed to establish any basis for setting aside the results of the bond vote.  Respondent also contends that, in Appeal II, petitioner Farr failed to prove any improper expenditure of public funds to advocate in favor of the bond proposal.  Respondent asserts that the appeals are based on speculation and that petitioners have failed to state a claim entitling them to the relief sought.  

I must first address several procedural issues.  By letter dated March 23, 2016, respondent objected to petitioner Farr’s memorandum of law in Appeal II as untimely and prejudicial.  By prior letter dated March 4, 2016, my Office of Counsel issued an expedited schedule for the filing of pleadings and memoranda of law in Appeal II. Petitioner Farr’s memorandum of law was required to be served on or before March 21, 2016, and respondent’s memorandum of law was required to be served on or before March 23, 2016.  Petitioner Farr submitted a memorandum of law dated March 23, 2016.  Commissioner’s regulation §276.4(a) provides that the Commissioner may permit the late filing of memoranda of law upon written application by a party, setting forth good cause for the delay and demonstrating the necessity of such memoranda to a determination of the appeal, together with proof of service of a copy of such application upon all other parties to the appeal.  Here, petitioner Farr submitted a late memorandum with no request for its consideration.  Subsequent to respondent’s objection to the late memorandum, petitioner’s counsel submitted a letter, dated March 24, 2016, explaining that he misread the due date set forth in the March 4, 2016 briefing schedule from my Office of Counsel.  However, such an excuse does not constitute good cause sufficient to excuse the late filing of pleadings and papers (see Appeals of McLoughlin and Wood, 55 Ed Dept Rep, Decision No. 16,886).  Further, the proposed memorandum appears to contain arguments responsive to respondent’s memorandum of law served on March 23, 2016, which is prejudicial to respondent.  In light of the above, I have not considered petitioner’s memorandum of law in Appeal II.

Respondent argues that petitioners lack standing to maintain Appeal I on behalf of disabled and elderly absentee voters and may not maintain the appeal as a class action.  I note that petitioners assert that they are district residents and qualified voters.  A person’s status as a district resident is sufficient to maintain an appeal with respect to the conduct of an election (see Appeal of Reese, et al., 49 Ed Dept Rep 328, Decision No. 16,044).  To the extent petitioners attempt to assert the individual rights of others, they lack standing to do so (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).  I also note that, with respect to representing disabled and elderly absentee voters, petitioners neither seek class status nor meet applicable standards on which to certify a class (see Appeal of Gilmore and Jordon-Thompson, 42 Ed Dept Rep 334, Decision No. 14,874).  However, petitioners as district residents may assert a board’s failure to comply with any requirement of the Education Law regarding the conduct of a special meeting of district voters to establish that an irregularity occurred in connection with such vote (see e.g., Appeal of Wayne, 39 Ed Dept Rep 518, Decision No. 14,298).

Turning to 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).  Similarly, 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).

Petitioners assert that respondent supplied an insufficient number of ballots for the February 9 vote in violation of Education Law §§2608(3) and 2609(2).  Education Law §2608(3) provides as follows:

There shall be delivered to the inspectors in each school election district on the day of the annual election, before the opening of the polls therein, a supply of such ballots which shall at least equal the number of qualified voters entitled to vote in such district.

According to petitioners, district records indicate that there are 44,104 qualified voters in the school district.  Therefore, petitioners claim that, by not supplying that number of ballots, respondent violated Education Law §2608(3).  In addition, petitioners argue that respondent violated Education Law §2609(2), which  provides that “[a]ll persons whose names appear upon the register prepared for such election as residing in such election district shall be permitted to vote and shall be given ballots for such purpose....”

Education Law §2601-a(2) provides that the board of education of such a city school district “shall conduct all annual and special district meetings for the purpose of adopting a school district budget in the same manner as a union free school district in accordance with the provisions of article forty-one of this title, except as otherwise provided by this section.”  Of necessity, this extends to votes on all budgetary propositions, at special or annual meetings, including a bond referendum under Education Law §416, which was made applicable to such city school districts by Chapter 171 of the Laws of 1996, which enacted §2601-a and made the budgets of city school districts with a population of less than 125,000 subject to voter approval.  Education Law §2601-a(2) also provides, however, that provisions of Article 53 of the Education Law, and subdivisions 9 and 9-a of Education Law §2502, where applicable, relating to the qualification and registration of voters and the procedures for the nomination and election of members of the board of education shall continue to apply and “shall govern ... voting procedures with respect to the adoption of a school district budget.”  Since Education Law §2608 relates to the nomination and ballots for election of members of the board of education and §2609(2) relates to the qualifications of voters, I find that such provisions do apply to the bond vote at this special district meeting.  While the Albany City School District conducts its elections of board members at the general election (see Education Law §§2502[9]; 2602[1]), most city school districts conduct their elections and budget votes simultaneously at the annual meeting on the same ballot.  Therefore, the procedures relating to ballots must be uniform for both the election and the budget vote and Education Law §2601-a accordingly makes the provisions of Article 53 of the Education Law relating to balloting applicable (see Education Law §2602[1]).

With respect to respondent’s initial supply of ballots, Education Law §2608(3) requires that the supply of ballots be “at least equal to the number of qualified voters entitled to vote in such district,” and be delivered to the election inspectors prior to the opening of the polls.  Although it is possible to comply with this provision by having sufficient paper ballots distributed, rather than scanner ballots, on this record petitioners are correct that respondent has not complied with Education Law §2608(3).  It is axiomatic that an adequate supply of ballots must be produced in advance of a special meeting of district voters, so that all voters who appear are able to vote. 

Petitioners assert that the district’s initial purchase of 5,650[3] scanner ballots for the February 9, 2016 vote was insufficient, resulting in the polling places running out of ballots.  Petitioners note that the number of ballots ordered was less than half of the 11,674 votes cast on the previous bond referendum held on November 3, 2015.  Petitioners allege that one polling site in particular, the Mater Christi School (“Mater Christi”) – served an election district of 6,378 qualified potential voters, which was more than the total number of scanner ballots initially provided city-wide.  According to petitioners, as a result of respondent’s failure to order more ballots, “by about 4 p.m. ... there were not enough ballots to continue voting throughout the city” and “hundreds of voters throughout the city” were stranded at various polling places while district officials ordered additional paper ballots.  Petitioners allege that the district’s failure caused chaos, confusion, and a dramatic decline in voter participation on February 9.  To support their allegations, petitioners attach to their petition only 29 affidavits from some of the named petitioners as well as other individuals.  Although each affidavit lists the affiant’s address, it does not state his or her polling site.  Thus, it is unclear on this record to which polling site each alleged irregularity is attributed.[4]  The affidavits are form affidavits that list various irregularities in general terms next to checkboxes.  For example, in 26 of these affidavits, individuals checked the box next to “chaos and confusion” and 11 individuals checked the box next to “polling site was out of ballots.”  However, none of the 29 individuals submitting affidavits checked the box indicating “unable to vote no.”  Although petitioners submit photographs from Mater Christi, I note that, while such photographs reveal a line of voters, there is no indication in those photographs of “chaos” or “confusion” in the polling place. 

Petitioners also attach social media and local newspaper reports which purport to “document the allegations in the petition on appeal as to the irregularities in the conduct of the election....”  However, it is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Lazarek and Roy, 55 Ed Dept Rep, Decision No. 16,838; Appeal of Rockwell, 51 id., Decision No. 16,355; Appeal of Wachala, 49 id. 31, Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision No. 15,826; Application of Coleman, 45 id. 282, Decision No. 15,324).  Therefore, I have not considered such articles or social media reports for the veracity of their content. 

Respondent admits that eight of the 15 polling sites ran out of scanner ballots at some point during the day and that the issue was reported to Catherine Cutting, the individual charged with coordinating and overseeing the February 9, 2016 vote.  According to the affidavit from Cutting, several polling sites experienced a shortage of printed scanner ballots at some point during the February 9 vote.  When those inspectors contacted Cutting, she directed them to begin using the 25 paper ballots and 25 white envelopes provided at each polling place.  She advised that, if the supply of paper ballots ran low, the inspectors should make photocopies of the paper ballots.  She further instructed inspectors that, during this emergency procedure, when voters completed the sign-in process, they were to be provided with a paper ballot and envelope, which they would take to a privacy booth, mark their vote, fold and place the ballot in the envelope, seal the envelope, and return it to the black ballot box provided with the voting materials. 

According to the record, only one polling site, ASH, experienced a significant delay (45 minutes) in voting while waiting for additional ballots to be delivered.  According to Cutting, however, every polling site but ASH was able to maintain continuous voting throughout the day using some combination of printed scanner ballots or emergency paper ballots.  Petitioners submit no reply or additional affidavits to refute respondent’s allegations.  Although respondent did not, prior to the opening of the polls, distribute the number of ballots required by Education Law §2608(3), respondent’s emergency measures to ensure that voters were, in fact, able to vote were reasonable.  On the record before me, petitioners have failed to prove that a sufficient number of voters were unable to vote or did not vote as a result of respondent’s failure to comply with Education Law §2608(3), that the outcome of the vote was affected, or that the fundamental fairness of the referendum was vitiated.  With the exception of the delay at ASH, one of 15 polling sites, on this record petitioners have established only that respondent’s failure to distribute a sufficient number of ballots in advance contributed to long lines and inconvenience for voters.  While respondent must take steps to avoid such a situation in the future, it is not sufficient to create an inference that the outcome of the vote was impacted.  

Petitioners assert that respondent did not properly secure ballots and also violated voters’ privacy rights with regard to its handling of paper ballots in violation of the Election Law.  In this regard, I note that the Election Law generally 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) and that such elections are governed in small city school districts by the provisions of Education Law, Articles 41 (“District Meetings”) and 53 (“School Elections in City School Districts of Cities with Less than [125,000] Inhabitants”).  Indeed, Education Law §2609(1), which is set forth in Article 53, states that “[s]uch elections shall be conducted ... in accordance with the provisions of the election law ... except as otherwise provided herein” (emphasis supplied).  Therefore, where Education Law Articles 41 or 53 contain specific provisions pertaining to school district votes and elections that conflict with the Election Law, the Education Law prevails and the Election Law does not apply.

With respect to ballot privacy, petitioners generally assert a violation of their rights to “secrecy and privacy” in relation to the handling of paper ballots.  Petitioners claim that voters were required to sign their names on the ballot envelopes.  Petitioners have not identified any specific provision of Education Law or Election Law pertaining to such allegation.  In any event, petitioners have not established facts to support their claim.  Petitioners state, “[u]pon information and belief,” that inspectors at several polling sites, including the William S. Hackett Middle School (“Hackett”) and Montessori Magnet School (“Montessori”), required voters “to sign their name on envelopes into which their ballots were placed before they were allowed to cast their ballot.”  As a result, petitioners aver that such a requirement was “sufficient to cause voters to either change their votes or to not cast their vote at all given the consequences to their employment, their children’s standing and grades in their classes, and the general knowledge that school district employees would know how they voted....”  To support their claim, petitioners submit 13 form affidavits from individuals in which they checked a box next to the general statement: “[l]ack of ballot security.”  Five affiants checked the box next to: “[i]mpairment of civil and personal rights.”  In only one affidavit did a voter state, “I had to sign my ballot.”  It is unclear from the affidavits provided whether any of the individuals voted at Hackett or Montessori as alleged in the petition.  Moreover, the affidavits set forth no specific facts sufficient to support petitioners’ claim.

According to Cutting’s affidavit, submitted by respondent, no poll inspectors were ever instructed to have voters write their names on emergency ballots or envelopes.  The affidavit from the poll inspector at Hackett indicates that one voter’s name appeared on the outside of the envelope containing the voter’s paper ballot.  However, it does not appear that the voter was instructed to do so and the paper ballots were all removed from their envelopes and set aside prior to counting.  Therefore, the voter’s name was not revealed with the ballot.  Petitioners submit no reply or additional affidavits to rebut respondent’s allegations.  Thus, petitioners have not established facts sufficient to support their claim.

Petitioners also claim that, at the Eagle Point Elementary polling place (“Eagle Point”) and possibly “other polling places,” absentee ballot envelopes were opened individually and immediately tallied by inspectors so that each absentee voter’s vote could be discerned, in violation of the Election Law.  However, in this instance, the Election Law does not apply.  Education Law §2613 specifically incorporates Education Law §2018-a which governs the use of absentee ballots in meetings and elections in city school districts having a population of less than 125,000.  Therefore, the provisions of the Election Law pertaining to absentee ballots do not apply.

In any event, petitioners fail to establish facts to support their claim.  Petitioners submit an affidavit from one individual, Frank Commisso, Jr., who states that he observed absentee ballots being opened at Eagle Point and that “each envelope was opened individually and the marked ballot was then reviewed by the inspector and tallied.”  He states that, “[b]ecause of this practice, I could identify how individual voters cast their ballots.”  In response, respondent submits an affidavit from board member Sue Adler, who was also present at Eagle Point with Commisso. The Adler affidavit sets forth in detail the procedures surrounding the opening of the absentee ballots and completely rebuts the statements in Commisso’s affidavit.  Petitioners have not submitted a reply nor any other evidence to refute respondent’s submission.  Therefore, I find that petitioners have failed to meet their burden of proof with respect to the opening of absentee ballots.

Finally, with respect to ballot security, petitioners claim that “there is no recollection by any of the voters who discussed their experience on election day at the various polling sites in the City of Albany of any locked boxes in which their voted papers [sic] ballots were to be secured after the voters had marked their ballots,” in violation of the Election Law.  In this instance, Education Law §2609(1) has a provision pertaining to ballot boxes which requires only that the board provide at least one ballot box for the ballots voted and at least one other for the rejected or defective ballots.  Section 2609 contains no further requirements for ballot boxes.  Petitioners cite Election Law §§4-132(b) and 8-104(2) and (4), which simply require locked ballot boxes to be used during the pendency of an election.  However, because the Legislature could have included a requirement for locked ballot boxes in Education Law §2609, but failed to do so, I conclude that such provisions of the Election Law do not apply.

Here, the record indicates that the district provided and used ballot boxes to secure voted ballots.  While 13 of the 29 form affidavits that petitioners submitted checked the box next to “[l]ack of ballot security” and five checked “[i]mpairment of civil and personal rights,” the affidavits do not adequately articulate any specific irregularity or facts in support thereof.   Accordingly, petitioners have not demonstrated an irregularity occurred with respect to the privacy and security of the ballots, or affected the outcome of the vote or its fundamental fairness.

Petitioners assert that absentee and affidavit ballots were counted before polls closed, in violation of the Election Law.  As noted above, Education Law §2018-a governs absentee ballots and the Election Law does not apply.  Education Law §2018-a(10) provides that “the inspectors of election immediately after the close of the polls shall examine [the absentee ballots]....”  In this regard, petitioners rely on the previously-cited Commisso affidavit, which indicates that he observed absentee ballots being opened at Eagle Point before the polls closed.   Adler’s affidavit does indicate that, at Eagle Point, the poll inspector started opening absentee ballot envelopes shortly before polls closed at 9 p.m.   However, Adler avers that Commisso fully observed the process and even decided to challenge two of the absentee ballots with unsigned envelopes.  Petitioners submit no reply to rebut respondent’s assertions.  Therefore, although it appears that the absentee ballots were opened shortly before the close of one polling place in violation of Education Law §2018-a(10), such violation is de minimus and there is no evidence that the irregularity affected the outcome of the vote.

Petitioners also claim that absentee ballots were not automatically provided to certain eligible voters with a permanent disability or illness in violation of Education Law §2018-a(2)(g), the Election Law, and the Americans with Disabilities Act (“ADA”).  To the extent that petitioners assert claims under the ADA, the appeal must be dismissed for lack of jurisdiction.  An appeal to the Commissioner is not the proper forum in which to raise alleged violations of the ADA (Appeal of Zlotnik and Hartman, 53 Ed Dept Rep, Decision No. 16,589; Appeal of Bd. of Educ. of City School Dist. of City of Rye, 53 id., Decision No. 16,513; Appeals of a Student Suspected of Having a Disability, 46 id. 539, Decision No. 15,588; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  Moreover, as noted above, petitioners lack standing to assert the individual rights of such voters. 

However, to the extent that petitioners, as district residents, assert an irregularity relating to the provision of absentee ballots in a school district vote, Education Law §2018-a(2)(g) provides as follows:

An applicant whose ability to appear personally at the polling place of the school district of which he is a qualified voter is substantially impaired by reason of permanent illness or physical disability and whose registration record has been marked “permanently disabled” by the board of elections pursuant to the provisions of the election law shall be entitled to receive an absentee ballot pursuant to the provisions of this section without making separate application for such absentee ballot, and the board of registration upon being advised by the board of elections on or with the list of registered voters that the registration record of a voter is marked “permanently disabled” shall send an absentee ballot to such voter at his last known address with a request to the postal authorities not to forward same but to return same in five days in the event that it cannot be delivered to the addressee....

Petitioners assert that approximately 700 permanently disabled absentee voters in the City of Albany are eligible to automatically receive their absentee ballots.  However, they allege that, prior to the February 9 vote, certain individuals realized that their permanently disabled family members and friends had not received their absentee ballots.  In their petition, petitioners state that some of those permanently disabled voters were able to obtain absentee ballots and vote, but that petitioners are in the process of contacting “many of the voters on the list of permanently disabled voters to learn if they received their absentee ballots from the school district prior to the election.” 

Respondent denies any wrongdoing with respect to this claim.  Further, Cutting responds in her affidavit that the BOE sent her a list of all permanently disabled qualified voters in January 2016, and that she sent absentee ballots to every permanently disabled voter on the list.  Petitioners submit no reply to refute respondent’s allegations, nor have they submitted any additional affidavits to establish that any permanently disabled voters did not receive an absentee ballot prior to the referendum and were denied their right to vote.  Therefore, petitioners’ claim is entirely speculative and must fail.  

Petitioners assert that polling places were illegally crowded due, in part, to the configuration of election districts, causing excessive wait times in violation of Election Law §§4-100(3)(a), 4-104(5)(a),(c),(6) and 9 NYCRR §6210.19[5] which relate to election districts and polling places.  However, in this regard, Education Law §2604 contains provisions regarding the division of city school districts into election districts and specifically states that such school districts “shall be so divided that if circumstances will permit, school election districts will be conterminous with one or more general election districts, and that, if practicable there shall be a schoolhouse in each election district.”  The Education Law contains no further requirements for election districts, such as limitations on the total number of voters eligible to vote in a combined election district.

In any event, in the petition, petitioners focus only on waiting times at the Mater Christi polling site.  Petitioners allege that, “[u]pon information and belief, the polling site at Mater Christi ran out of ballots at mid-day,” causing mass confusion, chaos, and lines.  They further allege that, “[u]pon information and belief, ... dozens of voters came into the building [sic] took one look at the lines and delays and immediately turned around and left the voting site.”  To support their allegations, petitioners rely on the 29 form affidavits they submitted; 15 have checked the box next to “[p]olling site overcrowded/lack of adequate parking.”  Twenty-six checked: “[c]onfusion and chaos at the polls.”  As discussed above, none of the 29 form affidavits have a checked box next to “[u]nable to vote no” or provide sufficient facts to support a claim that the outcome of the February 9 vote was affected.  Nor do the form affidavits identify the polling site at which each affiant voted.

According to the affidavits submitted by the district’s poll inspectors and voters at Mater Christi, there were long lines at times, with an hour wait at the busiest time.  Respondent admits through the affidavits from its poll inspectors that many of the polling sites experienced delays, long lines, scanner malfunctions, and/or a shortage of ballots.  However, the poll watchers, voters, and inspectors at Mater Christi attested in their affidavits that they did not see voters leaving without voting.  On this record, petitioners have not established that the long lines and delays caused “dozens of voters” to leave Mater Christi without voting, as they claim.  Accordingly, I find that petitioners have not proven that the delays vitiated the fundamental fairness of the referendum.

Petitioners assert that polling sites were not open at 7 a.m. and/or lacked appropriate signage.  I note that Education Law §2602(3), which is applicable to special school district meetings, requires only that the polls for such meetings be open for not less than nine consecutive hours beginning no earlier than 7 a.m., with at least two such hours after 6 p.m.

As with their other claims, petitioners rely on form affidavits from nine voters who checked the box indicating “[l]ocked doors/lack of signage,” and from 26 voters indicating “[c]onfusion and chaos at the polls.”  As discussed above, these boilerplate affidavits do not adequately articulate any specific irregularity.  Further, there is no indication that any particular polling place lacked appropriate signage.  While respondent admits that doors at two locations were inadvertently locked for a short time on the morning of the February 9 vote, and that other locations experienced delays due to temporary scanner malfunctions or inability to immediately access the voting materials, petitioners have failed to demonstrate that these irregularities affected the outcome of the vote or vitiated the fundamental fairness of the referendum.  While respondent admits that up to 27 individuals may have left polling sites that experienced delays without voting, respondent also states that approximately seven of these individuals returned to vote during the day.  Given that the bond referendum passed by a margin of 189 votes, on this record, I cannot conclude that any such irregularities affected the outcome or vitiated the fundamental fairness of the referendum.

Petitioners also assert that inspectors lacked proper training.  Petitioners cite no legal requirement that inspectors for a school district vote receive training by the BOE, and indeed, none exists (Education Law §2607).   In any event, according to the affidavit from Cutting, who was responsible for recruiting inspectors for the February 9 vote, 45 inspectors previously served in May 2015 annual meeting and were trained by BOE or the school district.  Further, she indicates that training for all prospective inspectors was provided by the district on February 2, 2016.  Petitioners submit no reply or additional affidavits to refute respondent’s contentions.  Therefore, petitioners have failed to establish the existence of any irregularity in this regard.

Petitioners assert that respondent failed to keep an inventory of sign-in sheets and paper ballots.  Specifically, petitioners allege that an inspector from the Arbor Hill Library polling site noticed after the vote that the result from her polling site reported in news article was 39 votes higher than she remembered.  Petitioners claim that, based on her statements alone, the district reduced the vote margin from 228 to 189 in favor of the bond.  According to the record, the February 9, 2016 vote passed by an initial margin of 228 votes, which was subsequently reduced to a 189-vote margin, as reflected in the district’s Official Certificate of Canvass dated February 10, 2016.  Petitioners provide no affidavit from the poll inspector or any individual to support the claim that the number of votes was reduced based only on a poll inspector’s recollection.  According to Cutting’s affidavit, she personally noticed that the reported tallies were incorrect but concluded this was likely a communication error, and that the ballot count was correct as reflected in the Certificate of Canvass dated February 10, 2016.  Petitioners submit no reply or additional affidavits to rebut respondent’s contentions.  Therefore, petitioners have failed to establish the existence of an irregularity in this regard.

Finally, in Appeal II, petitioner Farr asserts that the district improperly used public funds to advocate for the passage and adoption of the bond issue.  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).  Petitioner Farr challenges a flyer sent to parents of district students.  She submits a form affidavit with checkboxes and a copy of a mailing she received from her child’s school.  The mailing contains, in part, a one-page flyer regarding the vote and the proposed construction project.  Although Farr did not check the box on the form affidavit next to “[u]se of public resources in favor of referendum,” she did check the box next to “[s]chool district sent out misleading information.”  In response, respondent contends that the flyer was intended to be informational only and did not constitute improper partisan activity.  I have reviewed the flyer and do not find it to be advocating in favor of a “yes” vote or factually misleading.  As with Appeal I, petitioner submits no reply or additional affidavits in Appeal II to rebut respondent’s contentions.  Therefore, petitioner has not established that respondent improperly used public funds to exhort voters to approve the proposed bond and her claim must fail.

On this record, petitioners have not demonstrated that any irregularities occurred that affected the outcome of the February 9, 2016 vote, were so pervasive that they vitiated the electoral process, or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.  While the record before me indicates that irregularities did occur in the conduct of this election, as noted above, 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).  Here, the record indicates that the bond passed by a margin of 189 votes, and while petitioners have established that certain irregularities occurred, they have not established that such irregularities vitiated the electoral process such that the will of the voters cannot be ascertained and the fundamental fairness of the referendum was impacted (cf. Appeal of Touré, et al., 54 Ed Dept Rep, Decision No. 16,660).  For example, while petitioners submitted 29 form affidavits with their petition, none of the affiants checked the box to indicate that they were “unable to vote no” during the February 9, 2016 bond vote.  Petitioners have submitted no other proof that any irregularities committed by respondent resulted in a sufficient number of voters not voting to cast doubt on the outcome of the vote.

Given the lack of evidence produced by petitioners and the 189-vote margin by which the bond referendum passed, on this record, I am constrained to dismiss this appeal.  I cannot conclude that petitioners have established that the fundamental fairness of the February 9, 2016 bond vote was compromised and I find no basis upon which to overturn the results of the vote.

Nevertheless, I urge respondent to review its procedures and take appropriate measures to minimize delays in voting in future elections.  

THE APPEALS ARE DISMISSED.

END OF FILE

* The following individuals are also listed as petitioners: THEODORE MARC ETOLL, THOMAS CHILLEMI, SHEILA F. JORDAN, CHRISTINE E. LENAGHAN, MARGARET M. CZERWINSKI, STEPHEN W. MARKS, JEAN E. PORTER, ROBERT HOTALING, SANDRA CHILLEMI, BRIAN A. BOLTON, LAWRENCE N. DACK, EDWARD R. SHANNON, THERESA J. HEATH, DONNA M. COONLEY, DAVID A. PISANESCHI, DOROTHY C. DACK, PATRICIA K. SHANNON, SUZANNE M. WALTZ, KIRKHAM R. CORNWELL, SANDRA K. BRAND, JACK L. BRAND, MARY F. SZYDLOWSKI, FRANCIS J. SZYDLOWSKI, FREDERICK M. PERKINS, TINA KEHOE CHEEKS, and MARY BETH FARR.

 

[1] I note that in my order granting interim relief in Appeal I and in my Office of Counsel’s letter regarding the fact that the request for interim relief in Appeal II was rendered moot, expedited briefing schedules were set for both appeals, which included the opportunity for petitioners to submit reply documents.  However, petitioners did not do so in either appeal.

 

[2] I note that petitioner Farr is also a petitioner in Appeal I.

 

[3] Although petitioners allege that respondent initially ordered 5,250 scanner ballots, respondent states that it actually ordered 5,650 scanner ballots in advance of the February 9 vote.

 

[4] Respondent indicates in its memorandum of law that a cross-reference address search in the voting directory revealed that the individuals would likely have voted at one of six polling places (Albany School for Humanities (“ASH”), City Parks and Recreation, Albany High School, Mater Christi, New Scotland Elementary School, or Pine Hills Elementary School) and that one affidavit was submitted by an individual who was present at Eagle Point Elementary School.

 

[5] I note that Article 53 of the Education Law contains no provision that makes such regulations applicable.