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Decision No. 17,077

Appeal of DANIEL P. VERA from action of the Putnam Valley Central School District, the Board of Education of the Putnam Valley Central School District, Superintendent Dr. Frances Wills, and District Treasurer Jill Figarella regarding a bond referendum.

Decision No. 17,077

(April 19, 2017)

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

ELIA, Commissioner.--Petitioner, a resident and taxpayer of the Putnam Valley Central School District (“district”), challenges the actions of the Board of Education of the Putnam Valley Central School District (“board”), Superintendent Dr. Frances Wills, and District Treasurer Jill Figarella (collectively, “respondents”), regarding a bond referendum.  The appeal must be dismissed.

This appeal concerns a referendum held by respondents on December 8, 2015, to establish a ten million dollar ($10,000,000.00) Capital Reserve Fund.  Such referendum was passed by 45 votes.  By way of background, discussions regarding a possible referendum on the creation of a capital reserve fund in order to meet the anticipated buildings and facilities needs of the district began during summer 2015.  The issue was discussed at district meetings held in the fall of 2015, at which petitioner was present.  The proposal was also presented to and adopted by the board at a September 17, 2015 meeting and was posted to respondents’ website on September 18, 2015.  Several other meetings were held over the fall and early winter of 2015 at which the proposal was presented, including two town board meetings.  Notice of the vote was placed in two local newspapers. 

Petitioner appeals the outcome of the referendum based upon several alleged irregularities with the voting process.  Petitioner seeks an order mandating that respondents hold another vote in the future on the same date and at the same time as the annual district budget vote in May.  Petitioner contends, among other things, that the district’s notice of the vote was inadequate and/or defective; that the vote was held in the middle of the busy holiday season, which caused unusually low voter turnout; that the district only had one polling place and that normal voting times were shortened by six hours; and that residents were disenfranchised by a lack of parking at the polling place because other events were taking place there.  Petitioner’s request for interim relief was denied on January 19, 2016.

Respondents argue that the petition must be dismissed because petitioner has failed to demonstrate there were any substantial irregularities in the conduct of the December 8, 2015 vote.  Respondents also contend that petitioner failed to prove that any alleged irregularities affected the outcome of the vote.[1] 

First, I must address a procedural matter.  Petitioner filed a reply to respondents’ answer.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Petitioner’s reply does not respond to respondents’ affirmative defenses nor does it respond to new material in respondents’ answer.  Therefore, I have not considered the reply or the exhibits attached to it.

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).

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 assets that the irregularities in this case “were so substantial that they affected the outcome of the election” and require that I invalidate the referendum and order that a new vote be held at the same time as the annual budget vote.  Specifically, petitioner argues that the district’s notice was inadequate and defective.  Education Law §2007(1), which applies to special district meetings in union free school districts and applies equally to central school districts such as respondents’ district (see Education Law §1804[1]), requires that such special district meetings be conducted in the manner prescribed in Education Law §2004.  Education Law §2004(1) governs the notice requirements of an annual meeting in a union free or central school district and requires that the first publication of the notice of a district election must be at least 45 days prior to the election in two newspapers having general circulation in the school district.  The election in this case was held on December 8, 2015 and the notice was published four times within seven weeks prior to the election in two local newspapers having general circulation.  The first publication date in both newspapers was October 21, 2015, more than 45 days prior to the vote.  Therefore, I find that notice of this special district meeting complied with the notice requirements set forth in §2004(1) of the Education Law. 

Petitioner also claims that “at least 70 people” did not receive actual notice of the vote.  To support his claim, he submits affidavits from 70 individuals stating that, had they known about the vote or been able to vote on that day, they would have voted “no.”  However, under §2004 of the Education Law, the district is not required to guarantee that each voter receives actual notice prior to a vote.  Instead, the district is legally required only to provide procedural notice pursuant to the mandates in the law (see Education Law §2004).  As discussed above, the district complied with the notice requirements in this case.

Petitioner also contends that the December 8, 2015 vote was only held over a six-hour time period, which was shortened from prior elections and disenfranchised voters.  Education Law §2007(4) mandates that a special meeting may be called by the board of education of a district and such meeting must be called for “at least six hours” between the hours of 7:00 in the morning and 9:00 in the evening.  At least two of these voting hours must take place after 6:00 in the evening.  Here, respondents held the December 8, 2015 special district meeting for six consecutive hours between 3:00 in the afternoon and 9:00 in the evening.  While these hours differ from those of past elections, they are in full compliance with Education Law §2007(4) and there was nothing to prevent respondents from adopting new hours with the statutory range.  Respondents’ scheduling meets the requirements set forth in the Education Law; therefore, I will not invalidate the vote based on this ground.

Next, petitioner’s arguments regarding the time of year that the vote was held, that it was only held at one polling place and that parking was difficult because other events were going on at the school serving as the polling place, are likewise not availing.  The Education Law does not mandate that special district meetings can only be held at certain times of the school year, nor does it state that votes need to be held in more than one polling place or at a polling place where other events are not being held.  Petitioner points to no portion of the law mandating such requirements and to no authority holding that a special district meeting cannot be held during the “holiday season.”

More specifically, regarding petitioner’s argument that other events were scheduled at the high school for the same time as the vote, which “created a chaotic situation” further disenfranchising residents, there is a presumption of regularity in the conduct of an election. To warrant setting aside an election, petitioner must establish that the improprieties are substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46, Decision No. 12,564).  As discussed above, petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR §275.10; Appeal of Pickreign, 28 Ed Dept Rep 163, Decision No. 12,067).  Upon the record before me, I find petitioner has failed to meet that burden.  Petitioner states that there would be “no harm” to the district or the taxpayers to set aside the election results and wait until a new vote is scheduled; however, this is not the standard upon which I will set aside an election.

Moreover, petitioner’s claim that the district engaged in “targeting” because a varsity basketball game and a winter chorus took place at the same time as the vote is not borne out in the record or supported by the cases upon which he relies.  Petitioner cites Appeals of Schadtle and Wilcox (38 Ed Dept Rep 599, Decision No. 14,102), in which the Commissioner upheld the election results, but sustained the appeal in part and ordered the district to refrain from using district resources to advocate a partisan position.  Unlike petitioner’s allegations herein, the “targeting” at issue in Appeals of Shadtle and Wilcox was respondent’s use of resources (telephone system and printed materials) to communicate directly with parents.  In this regard, the Commissioner stated that “it is improper for respondents to make telephone calls using a selective list of district voters, such as a list of residents of the district with children enrolled in public schools, who are likely to support the adoption of the propositions because such activity affords the appearance of impermissible partisan activity.”  Similarly, while noting that the determination of whether a school district engaged in targeting is a question of fact dependent upon the circumstances of each case and concluding that distribution of election information on a less than district-wide basis does not constitute impermissible targeting per se, the Commissioner concluded that “the use of specialized mailings or distributions to parents of students or other selected groups may in some instances suggest the appearance of partisan activity.”  In the appeal before me, petitioner alleges only that the scheduling of two events at the school during the vote was done to attract those more likely to vote for the proposition.  However, other than his conclusory assertions, petitioner presents no evidence that district resources were used to advocate a partisan position in this regard or that such activities constituted or created the appearance of impermissible partisan activity.  The mere scheduling of events such as a basketball game or a concert simultaneously with a bond vote does not establish that targeting has occurred.

Finally, to support his claim that the alleged “targeting” described above “substantially affected the outcome of the election,” petitioner relies on Matter of Boyes, et al. v. Allen, et al. (32 AD2d 990, aff’d 26 NY2d 709) (“Boyes”).  Boyes involved a challenge to a school district merger election based on various alleged irregularities including that 13 unqualified votes were cast at the election.  The court upheld the election results, concluding that petitioners failed to prove that the unlawful acts complained of would have affected the outcome of the election (Boyes, 32 AD2d at 991).  As noted above, 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, 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.  As in Boyes, petitioner here has failed to carry his burden of establishing one of the required two prongs of this test as he has not demonstrated that any irregularities occurred with respect to the December 8, 2015 vote.  The appeal must therefore be dismissed.

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Petitioner submitted additional evidence to my Office of Counsel and requested that I consider it as part of this appeal.  Respondents opposed the submission.  In my discretion, I have considered the additional evidence and find that it is not relevant to the validity or propriety of the election held on December 8, 2015.