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Decision No. 17,373

Appeal of KARIN B. CAMPBELL from action of the Board of Education of the Westbury Union Free School District, Robin L. Bolling, Rodney Caines, and Reynold Zelaya, regarding an election and application for the removal of board members Robin L. Bolling, Dr. Pless Dickerson, and John Simpkins.

Decision No. 17,373

                        (April 11, 2018)                            

Bond, Schoeneck & King, PLLC, attorneys for respondent Board of Education of the Westbury Union Free School District, Candace J. Gomez, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the actions of the Board of Education of the Westbury Union Free School District (“respondent” or “board”) Robin L. Bolling (“Bolling”), Rodney Caines (“Caines”), and Reynold Zelaya (“Zelaya”),[1] regarding the district’s May 2017 school board election and requests removal of board members Bolling, Dr. Pless Dickerson (“Dickerson”), and John Simpkins (“Simpkins”).[2]  The appeal must be dismissed and the application must be denied.

On May 16, 2017, respondent held its annual budget vote and election to fill two vacant board seats.  Four candidates were listed on the ballot: petitioner, an incumbent; Bolling, an incumbent; Caines; and Zelaya.  Caines and Bolling received the most votes (890 and 836, respectively).  Petitioner received 510 votes and respondent Zelaya received 538 votes.  Respondent certified the results on June 15, 2017.[3] 

Petitioner asserts that, prior to the election, on May 11, 2017, she attempted to submit “100 plus” absentee ballot applications to the district clerk but the district clerk advised her that the applicants would have to pick up their own absentee ballots.  Petitioner showed the district clerk the second page of the absentee ballot application, which contains a checkbox authorizing a designated person to pick up the absentee ballot on his or her behalf.  The district clerk informed petitioner that she was using the wrong absentee ballot application form.[4]  According to petitioner, upon questioning, the district clerk indicated that another district resident had submitted numerous absentee ballot applications “over a three day period requesting to pick up absentee ballots for applicants” and, after the district clerk initially gave a number of absentee ballots to the resident, the district clerk eventually advised the other district resident that she would be unable to pick up any more absentee ballots on behalf of other registered voters.  Rather, according to petitioner, “the decision was made between the [d]istrict [c]lerk and the [district’s] attorney to appease the resident by mailing the absentee ballots via overnight express mail to the applicants so they would not have to come in and pick up their ballots.”  Petitioner asserts that she requested that the district clerk mail her “100 plus” absentee ballots directly to her voters so they would not have to come in and pick up their ballots, as the district clerk did for the other district resident, but the district clerk responded that “no, she did not have time, she had other work to do and please understand.”  

Petitioner asserts that May 9, 2017 was the last day that absentee ballots could legally be mailed to applicants, and that respondent improperly mailed absentee ballots to the other resident’s registered voters after the deadline.  Petitioner further asserts that “[her] residents were now being denied the opportunity to have ballots delivered to them and/or mailed to them via express overnight mail” and, because they could not pick up their own ballots in person, they were effectively being denied the opportunity to vote in the election. 

Petitioner also asserts that the resident “who had picked up absentee ballots is the same resident whose voice was recorded on robo calls asking residents to join the ABC team, Vote for Anybody But Campbell following the establishment of an illegal link on the school district’s website.”  Petitioner contends that the “robo calls” were the result of improper use of respondent’s resources.  Finally, petitioner asserts that on March 16, 2017, respondents Bolling, Dickerson, and Simpkins illegally held a board meeting without a quorum and illegally entered into executive session to discuss legal matters.  Petitioner asserts that, during this illegal executive session, respondents Bolling, Dickerson, and Simpkins “agreed to establish a link to be placed on the District’s website where the public can add their names, emails, and telephone numbers” and that, on March 17, 2017, such link appeared on respondent’s website and is now “being used to campaign against [petitioner]” through the use of robo calls, emails, and text messages. 

This appeal ensued.  Petitioner’s request for interim relief was denied on June 30, 2017.

Petitioner requests that the election be overturned, and a new election be held because of “voters’ suppression and election irregularities.”  She requests “immediate removal” of respondent’s “members who participated in the illegal meeting and use of school district resources to campaign” and that the individual respondents “cease and desist the use of information gathered from this illegal site and that the site be removed from the district’s website.”  Finally, petitioner requests that I investigate respondent’s counsel’s “changing the process for the distribution of absentee ballots and applications in the late stage of the election process.”    

Respondent denies any wrongdoing and asserts that the appeal must be dismissed for lack of verification; failure to endorse with petitioner’s name, post office address, and telephone number; and failure to join a necessary party.  Respondent also contends that the Commissioner lacks jurisdiction to address Open Meetings Law allegations.  Finally, respondent asserts that some of the information provided by petitioner is protected by the attorney-client privilege and must not be considered in this appeal.

I must first address the procedural issues.  Respondent asserts that the appeal must be dismissed for lack of verification.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  The petition filed with my Office of Counsel contains the required affidavit of verification.  Accordingly, I will not dismiss the petition on that ground (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,276; Appeal of P.E., 57 id., Decision No. 17,232).

Respondent contends that the petition should be dismissed for failure to comply with §275.4 of the Regulations of the Commissioner of Education, which provides as follows:

All pleadings and papers submitted to the commissioner in connection with an appeal must be endorsed with the name, post office address and telephone number of the party submitting the same, or, if a party is represented by counsel, with the name, post office address and telephone number of the party’s attorney (8 NYCRR §275.4).

Respondent asserts that the appeal must be dismissed because it has not been signed with petitioner’s name, post office address, and telephone number.  I decline to dismiss the appeal based on petitioner’s failure to fully comply with §275.4 of the Commissioner’s regulations.  Where, as here, a petitioner is not represented by counsel, a liberal interpretation of the regulations is appropriate where there is no evidence of prejudice to the respondent (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Fillie-Faboe, 34 id. 643, Decision No. 13,438; Appeal of DeGroff, et al., 31 id. 332, Decision No. 12,657).  Here, the petition includes petitioner’s address but not her telephone number, and there is no signature block at the end of the petition as respondent notes.  However, documents attached to the petition include both petitioner’s district and personal email addresses and telephone number, which indicates that respondent possesses the information in question by virtue of petitioner’s recent service on the board (see Matter of Mangan, 22 id. 82, Decision No. 10,888).  Additionally, respondent’s affidavit of service indicates that it was able to serve the answer and other responding papers on petitioner.  Moreover, respondent has produced no support for its assertion that a signature or signature block is required under the regulation and indeed I find none.  Nevertheless, petitioner’s signature is contained on her affidavit of verification which is annexed to the petition.  Under such circumstances, I will not dismiss the appeal for this technical violation of §275.4 (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Fillie-Faboe, 34 id. 643, Decision No. 13,438; Matter of Mangan, 22 id. 82, Decision No. 10,888).

The appeal must be dismissed to the extent petitioner attempts to assert claims on behalf of certain absentee voters.  Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]).  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Strade, et al., 48 Ed Dept Rep 73, Decision No. 15,797; Appeal of Russo, 47 id. 429, Decision No. 15,744; Appeal of Houdek, 47 id. 415, Decision No. 15,740).  I note that petitioner asserts that she is a district resident, qualified voter, and former member of the board.  A person’s status as a district resident is sufficient to maintain an appeal with respect to the conduct of an election (see Appeals of Ghezzi, et al. and Farr, 55 Ed Dept Rep, Decision No. 16,890; Appeal of Reese, et al., 49 id. 328, Decision No. 16,044).  To the extent petitioner attempts to assert the individual rights of others, however, she lacks standing to do so (Appeals of Ghezzi, et al. and Farr, 55 Ed Dept Rep, Decision No. 16,890; Appeal of Walker, et al., 53 id., 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 absentee voters, petitioner neither seeks class status nor meets applicable standards on which to certify a class (see Appeal of Gilmore and Jordon-Thompson, 42 Ed Dept Rep 334, Decision No. 14,874).  Therefore, petitioner lacks standing to assert the rights of potential absentee voters.  However, petitioner has standing as a district resident to challenge respondent’s failure to comply with any requirement of the Education Law regarding the conduct of a school district meeting or election, including the provisions on absentee ballots, to establish that an irregularity occurred in connection with such vote (see e.g., Appeals of Ghezzi, et al. and Farr, 55 Ed Dept Rep, Decision No. 16,890; Appeal of Wayne, 39 id. 518, Decision No. 14,298).

Respondent asserts in its answer that the appeal must be dismissed due to petitioner’s failure to join two members of respondent board, Dickerson and Simpkins.  To the extent petitioner requests removal of Dickerson and Simpkins, the application must be denied.  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).  Here, petitioner seeks removal of the board members “who participated in the illegal meeting,” including Dickerson and Simpkins.  The rights of Dickerson and Simpkins would clearly be adversely affected if the application were granted and they must be joined as necessary parties (see e.g. Appeal of Lyons-Birsner and Birsner, et al., 57 Ed Dept Rep, Decision No. 17,160; Application of Simmons, 43 id. 7, Decision No. 14,899).  Neither Dickerson nor Simpkins is a named party in the caption and neither was served with the petition.  The affidavits of service submitted by petitioner indicate that service was made only on the district clerk, Bolling, Caines, and Zelaya.  There is no evidence in the record that Dickerson and Simpkins were personally served or that the district clerk was authorized to accept service on their behalf.  Service upon the district clerk did not secure personal jurisdiction over Dickerson and Simpkins.  Therefore, the application must be denied for lack of personal service and, consequently, failure to join them as necessary parties (Appeal of Lyons-Birsner and Birsner, et al., 57 Ed Dept Rep, Decision No. 17,160; Application of Johnson, et al., 56 id., Decision No. 17,055; Appeal of D’Angelo, 55 id., Decision No. 16,896).

In any event, to the extent petitioner requests “immediate removal” of members of the board “who participated in the illegal meeting and use of school district resources to campaign,” such application must also be denied because the notice of petition is fatally defective.  The notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, petitioner failed to give such notice and, instead, used the notice prescribed under 8 NCYRR §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent (Appeal of Passer, 57 Ed Dept Rep, Decision No. 17,274; Appeal of Reis and Argus, 51 id., Decision No. 16,335; Appeal of Carrion, 50 id., Decision No. 16,228; Application of Vendel, 49 id., 361, Decision No. 16,050).  It is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Appeal of Kelly, 45 Ed Dept Rep 38, Decision No. 15,253; Application of Knapp, 41 id. 41, Decision No. 14,608).

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).

Petitioner has failed to establish that the “robo calls” received by district residents were the result of improper use of respondent’s resources.  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 provides a copy of the website page containing the alleged illegal link and a text message from an unknown source, and concludes in her petition that “the information on the link is being used to campaign against [petitioner].”  The link is entitled “District Notifications Sign Up/Update” and allows district residents to click on the link to receive automatic notifications from the district by telephone, text or email.  Petitioner asserts that the resident “who had picked up absentee ballots is the same resident whose voice was recorded on robo calls asking residents to join the ABC team, Vote for Anybody But Campbell following the establishment of an illegal link on the school district’s website.”  Petitioner alleges in her petition that the “illegal link” appeared on the district’s website on March 17, 2017 – one day after board members Bolling, Dickerson, and Simpkins allegedly “agreed to establish a link to be placed on the District’s Website where the public can add their names, emails, and telephone numbers.”  Petitioner asserts that district residents “have received robo calls, emails and text messages.”  Although petitioner has demonstrated that a link was established, she provides no evidence that any candidates were provided with access to the information gained from the website.  Petitioner’s conclusory allegations, without more, are insufficient to establish that an irregularity occurred (see Appeals of Ghezzi, et al. and Farr, 55 Ed Dept Rep, Decision No. 16,890).  Therefore, to the extent she asserts that the establishment of this “illegal link” affected the outcome of the election, I find such claim to be without merit.

Petitioner also asserts that irregularities occurred with respect to respondent’s absentee ballot application process.  Education Law §§2018-a(2)(a) and 2018-b(2)(a) provide that an absentee ballot application must be received by the district clerk (or pursuant to §2018-b[2][a], the designee of the trustees or school board) at least seven days before the election if the ballot is to be mailed to the voter, or the day before the election, if theballot is to be delivered personally to the voter.[5]   Further, Education Law §§2018-a(3) and 2018-b(3) each provide that, after a determination is made that the applicant is a qualified voter and entitled to vote by absentee ballot, the absentee ballot is issued or mailed to the applicant.

To the extent petitioner asserts that respondent violated the provisions of Education Law §§2018-a or 2018-b by not allowing her to pick up absentee ballots on behalf of certain registered voters, she has failed to carry her burden.  I note that there is no authority in Education Law §§2018-a or 2018-b or any other provision of the Education Law for proxy voting (Appeal of Mauro, 35 Ed Dept Rep 517, Decision No. 13,617; Matter of Action of the Annual School Meeting, 58 St Dept Rep 423).  Therefore, respondent could properly determine, as it did, that absentee ballots may only be issued or mailed directly to the applicant.

Respondent acknowledges that its original absentee ballot application permitted applicants to have a proxy receive the absentee ballots and asserts that a total of six absentee ballots were improperly hand delivered to proxies before respondent realized its mistake on May 11, 2017.  However, it asserts that all other absentee ballots that were distributed prior to the election were either hand delivered by the district clerk directly to the registered voter or mailed by the district clerk directly to the registered voter.  Moreover, respondent indicates that, at the time it realized its mistake, sixty-five absentee ballots were pending, even though such applications were not received by the district clerk at least seven days before the election.  Nevertheless, respondent asserts that, in order to compensate for its mistake and so as not to disenfranchise those voters, it mailed the sixty-five pending absentee ballots to qualified voters via overnight delivery on May 12, 2017.

The record indicates that petitioner lost by a margin of at least 326 votes.  Petitioner failed to submit a reply or other evidence to refute respondent’s contentions or to establish that either the six absentee ballots improperly delivered to proxies, or the sixty-five absentee ballots delivered via overnight mail after the deadline affected the outcome of the election. 

Petitioner also failed to provide any affidavits from any of the “100 plus” voters who she alleges were unable to vote due to respondent’s failure to allow petitioner to pick up their absentee ballots.  Nor does petitioner establish that she would have received enough votes sufficient to win a seat on the board following the election.  As discussed above, mere speculation as to the effect of alleged irregularities is insufficient to annul election results (Appeal of Gorman, 44 Ed Dept Rep 435, Decision No. 15,222).  Accordingly, petitioner has failed to carry her burden of establishing that any actions by respondent affected the outcome of the vote or that the alleged irregularities were so pervasive that they vitiated the electoral process or demonstrate a clear and convincing picture of informality to the point of laxity. 

To the extent petitioner asserts that board members Bolling, Dickerson, and Simpkins illegally held a board meeting without a quorum and illegally entered into executive session to discuss of legal matters, I note that Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

Finally, to the extent that petitioner requests that I investigate respondent’s counsel’s “changing the process for distribution of absentee ballots and applications in the late state of the election process,” I note that 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).

In light of the foregoing, I need not address the parties’ remaining contentions.

While petitioner’s appeal must be dismissed for the reasons stated above, I caution respondent that it needs to review its procedures prior to conducting its district meetings and elections and avoid making procedural changes at the last minute that generate unnecessary appeals and could result in a vote being overturned.  I also remind respondent that it needs to treat all applicants for absentee ballots in the same manner and may not accept untimely applications for some applicants.

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

END OF FILE

 

[1] Although petitioner named and served Bolling, Caines, and Zelaya as respondents, the district’s counsel appeared only on behalf of respondent board.  As such, all references to “respondent” herein refer only to respondent board.

 

[2] The petition was also served on Sunaina Monga, the district clerk, though she is not named in the caption and no relief is sought against her.

 

[3] Respondent submitted an affirmation from Candice Gomez, respondent’s attorney, in which she attests to the election results.  Respondent also submitted an unsigned affidavit of the district clerk, which I have not considered in determining the appeal.

 

[4] According to petitioner, respondent’s district clerk initially gave her the wrong form so this was the second-time petitioner attempted to submit absentee ballot applications.

 

[5]I am unable to determine from the record whether respondent currently provides for personal registration of voters, in which case Education Law §2018-a would apply to absentee ballots, or does not provide for personal registration, in which case Education Law §2018-b applies.  However, I take administrative notice that, in 2009, in Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905, the provisions of 2018-a were applied in a case involving respondent’s district.