Appeal of JOYCE K. BISHOP from action of the Board of Education of the Walton Central School District regarding a special meeting of the district.

Decision No. 16,892

(April 1, 2016)

The Law Firm of Frank W. Miller, attorneys for respondent, Christopher M. Militello, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the actions of the Board of Education of the Walton Central School District (“respondent”) regarding a special meeting held on June 16, 2015 to conduct a revote on the school district’s revised budget for the 2015-2016 school year.  The appeal must be dismissed.

Petitioner is a resident of respondent’s school district and brings this appeal on behalf of herself and “all qualified voters of the Walton Central School District.”

At respondent’s annual meeting held on May 19, 2015, the proposed budget for the 2015-2016 school year was defeated by a vote of 519 “yes” votes to 616 “no” votes.  Respondent presented a proposed revised budget for a revote held on June 16, 2015, at which time the proposed revised budget passed by a vote of 511 “yes” votes to 510 “no” votes.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 23, 2015.

Petitioner contends the vote should be set aside on several grounds.  Petitioner alleges that the board violated Education Law §2025 by holding a regularly-scheduled meeting of the board of education on the same day as the revote.  Petitioner alleges that respondent’s appointment of the district’s business administrator to serve as clerk pro tem, while the district clerk was acting pursuant to her appointment as election chairperson/district clerk at another polling site, created an “atmosphere of confusion for the voting public” by failing to make a clear designation of responsibilities which resulted in a “lack of confidence in the voting process.”  Petitioner alleges that respondent violated Education Law §2025(3)(b) by failing to appoint a sufficient number of election inspectors.  Petitioner further alleges that the poll ballot report results show manual cross-outs of original vote tallies and new numbers being used for the final count; that the number of tallied votes did not originally match the total number of voters on the poll list; and that the district acknowledged minor problems with the voting machines following announcement of the vote results.  Finally, petitioner contends that, in light of the extremely close vote, respondent failed in its duty to provide the public with a fair and undisputed outcome by not securing all voting machines and materials and immediately addressing the need for a recount by an independent party.  Petitioner requests that I set aside the results of the June 16, 2015 budget revote and order a new vote to be held, under the supervision of an independent party.    

Respondent denies petitioner’s allegations and requests that the appeal be dismissed for failure to state a cause of action or claim upon which relief can be granted, for failure to meet the requirements for a class appeal, and for failure to establish that the alleged irregularities affected the outcome of the revote.

I will first address several procedural issues.  Petitioner attempts to submit a “Reply to Opposition to Application for Stay.”  Respondent objects to this submission on the grounds that there is no authority permitting a reply to papers opposing a stay request.  Furthermore, respondent contends that the denial of petitioner’s request for interim relief on July 23, 2015 has rendered the matter of a stay moot. 

I note that there is no authority in the Commissioner’s Regulations for a “reply” to papers opposing a stay request (8 NYCRR §275.3; Appeal of DeLouise, 49 Ed Dept Rep 384, Decision No. 16,058; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  I will not consider this document as petitioner’s reply under 8 NYCRR §275.5 because petitioner has failed to file an affidavit of service of such document pursuant to 8 NYCRR §§275.8(b) and 275.9, despite a request to do so from my Office of Counsel.  Moreover, to the extent the document is made in support of petitioner’s application for a stay, the matter is moot because the document was received by both my Office of Counsel and respondent’s attorney after petitioner’s stay request was denied.

Petitioner also attempts to submit a “Reply to Memorandum of Law” consisting of a two-page statement signed by petitioner addressing respondent’s memorandum of law, together with three affidavits labeled as exhibits.  Reply memoranda of law may be accepted only with the prior approval of the Commissioner (8 NYCRR §276.4; Appeals of Gorsky and Burbank, et al., 47 Ed Dept Rep 162, Decision No. 15,658; Appeal of Dunshee, 44 id. 414, Decision No. 15,216). However, a reply memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of Kirschenbaum, 43 Ed Dept Rep 366, Decision No. 15,020; Appeal of T.M., 41 id. 443, Decision No. 14,740; Appeal of Muench, 38 id. 649, Decision No. 14,110).  Petitioner submits the “Reply to Memorandum of Law” solely for the purpose of contesting the validity of a certain statement in the Statement of Facts in respondent’s memorandum of law. However, a memorandum of law should consist of arguments of law (8 NYCRR §276.4); a memorandum of law does not constitute proof or evidence of any facts stated therein (Appeal of Goldin, 43 Ed Dept Rep 20, Decision No. 14,904).  Accordingly, I will not consider any statements in respondent’s memorandum of law as proof or evidence of the facts stated therein.  Petitioner’s “Reply to Memorandum of Law” is therefore unnecessary and, to the extent it presents factual arguments and belatedly adds new assertions that are not part of the pleadings, is outside the scope of a memorandum of law, and will not be considered.      

Petitioner seeks to bring this appeal on behalf of herself and “all qualified voters of the Walton Central School District.”  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797). Other than to allege that the appeal is brought on behalf of the qualified voters of the district, petitioner has failed to adequately describe the class which she seeks to represent or to otherwise meet the requirements for a class appeal.  Therefore, class status is denied.

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., 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 that respondent violated Education Law §2025 by holding a regularly-scheduled meeting of the board of education on the same day as the budget revote.  The record establishes that at 7:01 p.m. on June 16, 2015, during the time of the budget revote, a regular meeting of the board of education was called to order by the board president, and the meeting was adjourned at 8:59 p.m.  According to the affidavit of respondent’s board president, the meeting was “a regularly-scheduled board meeting, the date for which was established long before the need for a budget revote was known” and that “[t]he fact that the budget revote was ... required to occur on the same day as this scheduled meeting was purely coincidental.”  I note that Education Law §2007(3)(b) generally requires that the school budget revote be held on the third Tuesday of June, which date fell on June 16, 2015. 

To support her claim, petitioner appears to rely on Education Law §2025(2), which provides in applicable part:

[w]hen hours have been set for voting in the notice of meeting or election, the chairman shall declare the polls open and closed at the appropriate time. No motions shall be in order during the hours specified in the notice for voting ... [emphasis supplied].

I note that there are no prior Commissioner’s decisions interpreting this provision, and it appears that it may be archaic and pertains to a time when all school district meetings were held for the purpose of presenting the school district budget to district voters and then conducting a vote to approve the budget and elect board members by hand or voice vote (see, e.g., Education Law §2022(1).  However, although a limited number of school districts continue to use such a procedure, the general rule is that school district votes are conducted by ballot, which may involve the use of voting machines as respondent did in this instance (Education Law §§2022[3];2035).  Where the voters convene in what is in essence a town hall meeting, motions on other business would be possible if not restricted.  Consistent with this, as respondent contends, the provision applies to annual district meetings, and not to regular board meetings, and is intended to limit the business conducted at annual meetings to submission of the budget for approval by district voters and the election of board members by district voters.  In any event, even if, for purposes of argument, I accept petitioner’s contention that Education Law §2025 prohibited respondent from taking action on motions at a regular board meeting held at the same time as the June 16, 2015 special meeting, on the record before me, petitioner has failed to establish that such irregularity actually affected the outcome of the vote.  Although petitioner alleges in a general manner that respondent’s decision to hold a regular board meeting during time of the budget revote resulted in a “lack of public confidence in the voting process,” there is nothing in the record to indicate that conducting the regular board meeting on June 16, 2015 affected district residents’ ability to vote on the proposed budget that day, or that the outcome of the budget revote was impacted in any way by the regular board meeting. 

Petitioner next alleges that respondent’s appointment of the district’s business administrator to serve as clerk pro tem, while the district clerk was acting pursuant to her appointment as election chairperson/district clerk at another polling site, created an “atmosphere of confusion for the voting public” by failing to make a clear designation of responsibilities which resulted in a “lack of confidence in the voting process.”  Petitioner also claims that the meeting minutes filed by the clerk pro tem contain an “improbable timeline.”  However, I note that in Appeal of Nicoletti (21 Ed Dept Rep 38, Decision No. 10,590), a board of education’s appointment of its district clerk to act as chairperson of a special district meeting and the board’s appointment of another individual to serve as temporary clerk at such meeting was found permissible under Education Law §2025(2). In any event, petitioner has again failed to establish that such alleged irregularities actually affected the outcome of the vote.

Petitioner alleges that respondent violated Education Law §2025(3)(b) by failing to timely appoint a sufficient number of election inspectors, and thereby failed in its duty to ensure that proper oversight and chain of custody of ballot materials were maintained during the voting period that occurred prior to their appointment as election inspectors.  Education Law §2025(3)(b) states in applicable part:

The board of education shall also appoint assistant clerks and election inspectors as required.  At least two election inspectors shall be appointed for each ballot box or voting machine.

Contrary to petitioner’s assertion, an affidavit submitted by respondent’s superintendent of schools indicates that, upon learning that two voting machines would be needed to conduct the vote, the superintendent appointed two additional election inspectors pursuant to the authority conferred upon him by respondent board at the district’s reorganizational meeting held on July 1, 2014 to make emergency appointments for the 2014-2015 school year when the need arises between regular board meetings; that upon information and belief, the two additional election inspectors were present for the entire election; and that at its regular meeting held on June 16, 2015, the board of education confirmed the superintendent’s emergency appointments.  Furthermore, even if I were to accept, for purposes of argument as discussed above, that the board’s confirmation of the appointment of the two additional election inspectors was invalid based upon the “[n]o motions shall be in order” provision of Education Law §2025(2), the superintendent’s appointment of the two inspectors would still be valid based upon his separate, emergency appointment authority.  Upon the record before me, petitioner has failed to establish a violation of Education Law §2025(3)(b) with respect to the required number of election inspectors.  Furthermore, even if I were to accept for purposes of argument that the two additional election inspectors were invalidly appointed, petitioner has failed to establish that the alleged failure to appoint the required number of election inspectors affected the outcome of the election (see Appeal of Brown, et al., 43 Ed Dept Rep 231, Decision No. 14,980).

Petitioner further alleges that the poll ballot report results show manual cross-outs of original vote tallies and new numbers being used for the final count; that the number of tallied votes did not originally match the total number of voters on the poll list; and that the district acknowledged minor problems with the voting machines following the announcement of the vote results.  However, respondent’s district clerk has submitted an affidavit that states she was present when the poll ballot report was prepared by the election inspectors and that the cross-outs were the result of a clerical error by the preparer and had no effect on the election.  The district clerk further states that the “minor problems” with the voting machines were difficulties with folding down the display screen on one of the voting machines following the close of the election; and that no problems were experienced with the operation of either voting machine during the election that affected the ability of voters to cast their ballots or impacted the machine counting of ballots.  Petitioner offers nothing further to rebut the above statements, and I find on the record before me that 

petitioner has failed to carry her burden of proof that the alleged irregularities concerning the vote tallies and the voting machines affected the outcome of the election.

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

THE APPEAL IS DISMISSED.

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