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Decision No. 17,301

Appeal of NOELEEN CASEY-TOMASI from action of the Board of Education of the City School District of the City of Port Jervis and William Smith, as board member, regarding an election.

Decision No. 17,301

(January 3, 2018)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent William Smith, Allison E. Smith, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from the actions of the Board of Education of the City School District of the City of Port Jervis (“board”) and William Smith, president and member of the board (“respondent”),[1] in connection with the district’s 2014 annual budget vote and school board election.  The appeal must be dismissed.

On May 20, 2014, the board held its annual meeting for purposes of voting on its proposed budget and to elect three members to the board.  The top three candidates with the most votes were elected to the board.  The results were as follows:

Judith Amato - 713 votes;

William Smith - 568 votes;

Florence Santini - 563 votes;

Tanya Parker Hughes - 556 votes;

Daniel Morese - 501 votes.

Therefore, Judith Amato, William Smith and Florence Santini were elected to the board.  The proposed budget passed by a margin of 763 to 299 votes.  

The record indicates that, by letter dated May 21, 2014, petitioner notified the Orange County Board of Elections of concerns she had concerning the election.  Specifically, she indicated that she “wish[ed] to file a grievance against [board] candidate Mr. William Smith” for attending a concert on the night of the election in the high school auditorium, which is within 100 feet of the gymnasium polling place, in violation of Election Law §8-104.  By letter dated May 22, 2014, petitioner’s complaint was forwarded to the board, which, according to petitioner, had some discussion of her concerns at its May 22, 2014 meeting.  This appeal ensued.

Petitioner alleges that respondent engaged in electioneering, in violation of Election Law §8-104(1); that respondent improperly used district resources to promote a partisan position; and that the board failed to appoint a chairperson for the election and acted in a partisan manner in the conduct of the election.  Petitioner requests that I review the facts related to the election “to determine if the Election Laws have been violated,” and “advise the [district] on any violations in regard to electioneering and election processes and procedures that may have tainted the outcome in the past and may contribute to unfair outcomes in the future.”

Respondent asserts that the election was conducted, in all respects, in accordance with the New York State Education Law and contends that petitioner failed to allege facts sufficient to state a claim entitling her to relief, improperly requests that I issue an advisory opinion, and fails to request appropriate relief.  

First, I must address the procedural issues.  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).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.[2]

By letter to my Office of Counsel dated August 27, 2014, petitioner submitted a letter from the Orange County Board of Elections dated August 20, 2014.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Petitioner did not make an application pursuant to 8 NYCRR §276.5 to submit the August 20, 2014 letter.  Moreover, it does not appear that this document was served on respondent.  Therefore, I have not considered the August 20, 2014 letter.

The appeal must be dismissed for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Section 275.8(d) of the Commissioner’s regulations provides in pertinent part: “If an appeal involves the validity of a school district meeting or election ... a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent” (emphasis added) (see Appeal of Schultz, 48 Ed Dept Rep 70, Decision No. 15,796; Appeal of Duffy, 47 id. 86, Decision No. 15,634).

Section 275.8(d) of the Commissioner’s regulations requires that, where an appeal involves the validity of a school district election, a copy of the petition must be served upon the board of education.  Thus, to the extent petitioner challenges the results of the election, the board is a necessary party.  Although it appears that petitioner has named the board in the caption of the petition, the record before me contains no affidavit of service indicating that the board was properly served.  Moreover, the board did not appear in the instant proceeding.  Petitioner’s failure to join the board thus requires dismissal of the appeal (Appeal of Gibbins and Byrnes, 49 Ed Dept Rep 367, Decision No. 16,052; Appeal of Walsh, 34 id. 544, Decision No. 13,405).

Further, to the extent petitioner challenges the validity of the election, the appeal must also be dismissed due to petitioner’s failure to join all of the successful candidates as respondents.  In the instant proceeding, five candidates ran for three board seats.  The relief petitioner seeks could potentially lead to a recount and adversely affect the rights of the successful candidates Amato and Santini.  Therefore, board members Amato and Santini are necessary parties.  The record contains no evidence indicating that board members Amato and Santini were properly served.  Petitioner’s failure to join the successful candidates running for seats on the board of education thus further requires dismissal of the appeal.

In addition, to the extent petitioner seeks a review of the underlying facts to determine whether respondent violated the Election Law and, if so, that I advise the district and order remedies regarding the election process and procedures found to have affected both election outcomes in the past and those which may unfairly contribute to unfair outcomes in the future, I lack the authority to grant such relief.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).  Because petitioner seeks relief in the nature of a request for an investigation, any discussion of the merits of the appeal would be in the nature of an advisory opinion.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Therefore, the appeal must also be dismissed because the relief sought is beyond the authority of the Commissioner to grant (see Appeal of Hardy, 56 Ed Dept Rep, Decision No. 16,977; Appeal of Race, 53 id., Decision No. 16,567; Appeal of Razzano, 39 id. 303, Decision No. 14,224). 

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on 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).

In addition, 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 has not met this burden.  Petitioner has not established that respondent violated the Education Law or Commissioner's regulations. Nor has petitioner established that any of the acts of which she complains actually affected the outcome of the election.

Petitioner alleges that respondent engaged in improper electioneering on the night of the election in violation of Election Law §8-104(1).  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 Ghezzi, et al., 55 Ed Dept Rep, Decision No. 16,890; Appeal of Lanzilotta, 48 id. 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”.  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 (see Appeal of Ghezzi, et al., 55 Ed Dept Rep, Decision No. 16,890).  In any event, Education Law §2031(a) prohibits electioneering from taking place within 100 feet of a polling place.

Petitioner asserts that, on the night of the election, respondent engaged in improper electioneering while voting at his designated polling place, the Port Jervis High School gym, by greeting, talking to and shaking hands with several individuals at his polling place and attending the Port Jervis Middle School Spring Concert in the Port Jervis High School auditorium.  Petitioner contends that respondent engaged in electioneering activities and acted in a partisan manner before and during the election by placing himself within 100 feet of the polling site to solicit support for both his candidacy and approval of the school budget by interacting with members of the community at the polling place.  Petitioner further alleges that, at the spring concert, respondent stood with the district superintendent at the auditorium entrance and greeted people as they entered and exited the auditorium.

Respondent contends that it is not unusual for him to attend events such as the spring concert and denies that he solicited any votes while in attendance.  Respondent does admit to having been within 100 feet of the polling site during the election and to greeting and shaking hands with several people at his polling place before and after voting.  However, he denies engaging in electioneering activities by soliciting votes within 100 feet of a polling site.

On this record, I find that petitioner’s allegations are conclusory in nature and unsupported by affidavits, and do not provide any basis for me to find that respondent violated Education Law §2031(a).  Moreover, petitioner presented no evidence that, even if respondent had engaged in improper electioneering or partisan activity, the outcome of the election would have been altered.  Petitioner offered no credible evidence that any eligible voters actually received improper solicitations from respondent or that, in the event they did, any of their votes were influenced by the alleged actions. 

Petitioner also asserts that respondent placed his own campaign signs “within 100 feet at the [Hamilton Bicentennial Elementary School] polling location and on School Property at the High School” polling site.  Respondent admits to placing signs in support of his candidacy at various locations throughout the district, but denies any of his signs were placed on district property or within 100 feet of any election polling place, as alleged.  Petitioner does not provide any evidence to support her allegations.  As such, petitioner failed to meet her burden of proof to establish that respondent engaged in electioneering prior to or during the election. 

Petitioner also alleges that prior to the election, respondent inappropriately attended a district elementary school Parent Teacher Association (“PTA”) meeting with the district superintendent, during which a presentation on the proposed school budget was delivered and respondent asked for attendees to vote for him and for his “YES campaign,” which encouraged passage of the budget and promoted his candidacy.  Respondent admits to attending the elementary school PTA meeting with the district superintendent, but denies that he solicited votes, either for passage of the budget or for his candidacy, at that meeting.  Respondent asserts that he attended the meeting at the invitation of the superintendent who, in fact, made a strictly factual presentation regarding the proposed budget.  On this record, petitioner has failed to meet her burden of establishing that any election irregularities occurred or impacted the outcome of the election.

Petitioner further asserts that respondent engaged in improper partisan advocacy by emailing a campaign poster to “many staff” at their district email addresses seeking support for his re-election and asking for a vote in favor of the budget.  Respondent admits sending an email from his private email address, using his home computer, to 71 individuals, some of which were sent to district-issued email addresses.  To the extent that petitioner claims that respondent’s email constituted improper use of district resources to exhort district voters, such claim is without merit.  The record indicates that the email was sent from respondent’s personal email account and did not indicate that he was representing the board of education (see Appeal of Munoz-Feliciano, 54 Ed Dept Rep, Decision No. 16,773; Appeal of Leger-Vargas, 54 id., Decision No. 16,771; see also Appeal of Williams, 55 id., Decision No. 16,900).  While it is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election, individual board members are entitled to express their views about issues concerning the district and engage in partisan activity, provided school district funds are not used (Application of Vogel, 46 Ed Dept Rep 481, Decision No. 15,570; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  While the record does not specifically indicate that district funds were used in this regard, respondent admits that the email was sent to some district-issued email addresses.  Although the record is not entirely clear on this point, given the concerns raised in this appeal, to avoid future controversy, I caution respondent to avoid sending such emails to district-issued email addresses (see e.g. Appeal of Williams, 55 Ed Dept Rep, Decision No. 16,900; Appeal of Georges, 45 id. 453, Decision No. 15,380).

Petitioner alleges that the district failed to have a chairperson of elections in place at the time of the election, in violation of the Election Law.  As such, petitioner claims that a fair and unbiased review of the facts by the district was impossible since, due to the district’s failure to appoint an election chairperson following the retirement of the original chairperson, the superintendent’s secretary was one of the individuals responsible for oversight of the election.  Respondent contends that the lack of an election chairperson was a technical oversight which had no effect on the election process since oversight was conducted by two district employees, with previous experience conducting elections.   

As discussed above, 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). Although the petition is devoid of specific allegations of violations of the Education Law, I note that Education Law §2607 provides that the election inspectors “shall, before opening the polls in the election district for which they are appointed, organize by electing one of their number as chairperson and one as poll clerk.”  However, petitioner has failed to establish that, under these circumstances, the lack of an election chairperson vitiated the fundamental fairness of the election or adversely affected its outcome.

Lastly, petitioner alleges that sufficient notice of the middle school spring concert was not given to all district residents, which may have created the appearance of impropriety or have had the effect of targeting potential voters more inclined to support the budget since the concert was held the day of an election in close proximity to a polling place.  Respondent contends that the spring concert was scheduled at the beginning of the year and was duly noted on the district calendar available on the district website, mailed to every district resident at the beginning of the school year and included on the board agenda as a reminder.   Petitioner’s allegations in this regard are without merit, conclusory and unsupported by affidavits or otherwise. 

Although I am constrained to dismiss this appeal on procedural grounds, based on the issues raised in this appeal, I remind the board and each candidate for district office to strictly adhere to the laws and regulations regarding electioneering or the appearance of such in any future elections.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] I note that, although the board is named in the caption, it did not appear in the instant proceeding.  Therefore, all references to “respondent” herein are to individual respondent Smith.

 

[2] I note that, together with her reply, petitioner submitted compact discs (“CDs”) which allegedly contain footage of respondent’s actions on May 20, 2014.  According to petitioner, the CDs were acquired by petitioner in conjunction with a Freedom of Information Law request and were unavailable to petitioner at the time this appeal was commenced.  As such, I will consider them.