Decision No. 17,809
Appeal of TROY DUNN from action of the Board of Education of the Rondout Valley Central School District and the Superintendent of Schools, Joseph Morgan, regarding voter registration.
Decision No. 17,809
(January 24, 2020)
Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May Esq., of counsel
TAHOE., Interim Commissioner.--Petitioner challenges purported action of the Board of Education of the Rondout Valley Central School District and its superintendent of schools, Joseph Morgan, (collectively, “respondents”) regarding voter registration with respect to a vote held at a special district meeting. The appeal must be dismissed.
Petitioner is a resident of respondents’ district. On December 11, 2018, at a special district meeting, district voters voted to approve a proposed capital project. This appeal ensued. Petitioner’s request for interim relief was denied on January 10, 2019.
Petitioner contends that respondents conducted the December 11, 2018 vote “possibly in violation of [the] Education Law and ... best practices of ensuring the integrity of a vote,” which “possibly disenfranchised qualified ... voters by possibly allowing unqualified persons to vote.” Specifically, petitioner claims that respondents failed to follow the voter registration procedure set forth in Education Law §§2606 and 2609. Petitioner further asserts that the December 11, 2018 vote did not follow the “best practice” set forth “in a document [t]itled ‘District Clerk’ prepared by [the Office of] Educational Management Services [for the] State Education Dep[artment].” For relief, petitioner requests that I determine whether: (1) the December 11, 2018 vote violated the Education Law and, “if so, what section”; (2) respondents “utilized best practice[s] to ensure the integrity of the vote”; and (3) “all voters casting ballots in the [December 11,] 2018 vote were qualified voters.” Petitioner further requests that – if I determine that respondents did not execute the December 11, 2018 vote in accordance with the Education Law – I declare the vote to be null and void. Finally, petitioner asks that I “[e]nsure” that district employees “receive training in both [New York State] law and best practice procedures (preferably from the Ulster County Board of Elections).”
First, I must address the procedural issues. Respondents failed to file a timely answer in this appeal. Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service. Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3). Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Ortiz, 47 id. 383, Decision No. 15,731). In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Hamblin, et al., 48 id. 421, Decision No. 15,902).
Here, the petition was served upon respondents on January 4, 2019. Respondents thus had until January 24, 2019 to serve their answer upon petitioner; however, the answer was served one day late, on January 25, 2019. Because respondents fail to address or explain such delay, I am compelled to reject their answer, and petitioner's factual statements in the petition are deemed to be true (Appeal of P.F., 59 Ed Dept Rep, Decision No. 17,737; Appeal of Young, 58 id., Decision No. 17,523; Appeal of R.S., 57 id., Decision No. 17,238). Nevertheless, on January 9, 2018, respondents timely served an affidavit from the district clerk in opposition to petitioner's request for interim relief and in support of their answer, and this affidavit is properly part of the record before me. Therefore, I have considered this affidavit to the extent that it is responsive to the allegations contained in the petition (Appeal of Wertman, 58 Ed Dept Rep, Decision No. 17,614, judgment granted dismissing petition, Wertman v. NYS Education Department, Sup. Ct., Albany Co., Special Term [Cholakis, J.], December 30, 2019; Appeal of C.C., 53 id., Decision No. 16,526; Appeal of Brarens, et al., 51 id., Decision No. 16,317). In the affidavit, the district clerk contends that respondents properly conducted the December 11, 2018 vote using a poll registration system and that no irregularities occurred during the vote.
Next, I must decline to accept an additional affidavit submitted by petitioner. 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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). 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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Here, petitioner failed to obtain permission to submit this affidavit, as required by section 276.5 of the Commissioner’s regulations. In addition, the affidavit seeks to raise new claims, including a second request for interim relief. Accordingly, I have not accepted the affidavit (see Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,765).
Turning to the merits, Education Law §2012 governs the qualifications of voters at school meetings and elections. To qualify to vote in a school district election, a person must be a citizen of the United States, at least 18 years old, a resident of the district for a period of at least 30 days preceding the election, and not otherwise disqualified as incompetent or ineligible pursuant to Election Law §5-106 (Education Law §2012).
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 Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Caswell, 48 id. 472, Decision No. 15,920), were so pervasive that they vitiated the electoral process (Appeal of the Bd. of Educ. of the Minerva Central School District, 54 Ed Dept Rep, Decision No. 16,628; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905), 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 Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748).
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 Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Antaki and Mosman, 47 id. 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.). 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
Here, petitioner concedes that his claims are speculative, insofar as he avers that respondents “possibly” violated the Election Law and best practices for local elections, which “possibly disenfranchised qualified ... voters by possibly allowing unqualified persons to vote.” Petitioner asks that I determine whether all voters were qualified and whether respondents’ procedure was proper, but he fails to establish – or even assert – that any irregularities occurred during the December 11, 2018 vote. Petitioner has thus failed to carry his burden of proof, and the appeal must be dismissed.
In any event, petitioner’s facial challenge to respondent’s voting procedure as employed during the December 11, 2018 vote lacks merit. Although petitioner objects to the fact that respondents did not use a personal registration system to verify that all voters who participated in the December 11, 2018 vote were qualified to do so, respondents were not obligated to implement such a system. Under Education Law §2014 – which is made applicable to central school districts pursuant to Education Law §1804(1) – a board of education “may ... provide for the personal registration of voters at school meetings or elections in such district”; however, personal registration is not required (Education Law §2014 [emphasis added]). Indeed, Education Law §2018-c(b) expressly provides that, “[a]s an alternative to [the] voting procedures provided for in section  ..., a school district may require all persons offering to vote ... to provide their signature, printed name, and address” (emphasis added).
According to the affidavit of the district clerk submitted by respondents, respondents’ district “has not implemented a system of personal voter registration.” Instead, “qualified voters vote by ... ‘poll registration,’” whereby “any individual who presents himself or herself to vote is permitted to do so unless the individual is challenged as unqualified at the polling place.” According to petitioner, any individual who sought to vote at the December 11, 2018 special district meeting was permitted to do so upon “sign[ing] a blank ledger and provid[ing] an address.” Respondents thus appear to have conducted the December 11, 2018 vote in accordance with Education Law §2018-c(b), and there is no basis upon which to conclude that respondents’ decision not to require personal registration or proof of residence was unlawful.
Accordingly, I find that petitioner has failed to establish that respondents’ use of poll registration was arbitrary, capricious, or unlawful, and petitioner’s mere speculation as to the possible existence of irregularities provides an insufficient basis upon which to annul the results of the December 11, 2018 vote (Appeal of Antaki and Mosman, 47 Ed Dept Rep 228, Decision No. 15,678; see also Appeal of Crowley, et al., 39 id. 665, Decision No. 14,345; Appeal of Krantz, 37 id. 257, Decision No. 13,853). Therefore, the appeal must be dismissed.
To the extent petitioner requests that I investigate respondents’ conduct with respect to the December 11, 2018 vote, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893). I thus lack jurisdiction to grant such relief. Furthermore, to the extent petitioner asks that I “[e]nsure [district] employees responsible for the execution of school votes and elections receive training [and that] such training be documented,” petitioner has failed to establish any need for such training, insofar as he has not proven that any irregularities occurred during the December 11, 2018 vote. I therefore decline to award the requested relief.
In light of this disposition, I need not address the parties’ remaining arguments.
THE APPEAL IS DISMISSED.
END OF FILE
 In a letter dated January 29, 2019, my Office of Counsel informed petitioner that no stay order would be issued in connection with this second request for interim relief.
 Notably, the district clerk asserts that “[n]o challenges were made of any voters or absentee voters at the December 11, 2018 special district meeting.”
 Although petitioner cites Education Law §§2606 and 2609, these sections apply only to small city school districts and are thus inapplicable to respondents’ district.