Decision No. 17,947
Appeal of NANCY HOLLIDAY from action of the Board of Education of the Wyandanch Union Free School District; Stephanie Howard, as district clerk; Helisse Palmore; Jarod B. Morris; and Latesha Walker regarding an election.
Decision No. 17,947
(December 15, 2020)
Guercio & Guercio, LLP, attorneys for respondent, Lisa L. Hutchinson, Esq., of counsel
ROSA., Interim Commissioner.--Petitioner appeals purported actions of the Board of Education of the Wyandanch Union Free School District (“respondent board”); district clerk Stephanie Howard (“district clerk”); candidate Helisse Palmore (“Palmore”); and candidates and trustees Jarod B. Morris (“Morris”) and Latesha Walker (“Walker”) regarding the district’s June 2020 school board election. The appeal must be dismissed.
On June 9, 2020, respondent board held its annual budget vote and school board election, in which district residents voted to fill two board seats. Walker and Palmore competed for one such seat, and Morris competed against petitioner – the incumbent – for the other. On June 16, 2020, respondent board canvassed the ballots and determined that Walker had received 449 votes, defeating Palmore, who received 221 votes. Morris received 381 votes, defeating petitioner, who received 296 votes. This appeal ensued. Petitioner’s request for interim relief was denied on July 17, 2020.
Petitioner alleges that Morris engaged in improper electioneering and is ineligible to serve as trustee because “he did not meet the statutory requirements to run in the election.” Petitioner further asserts that respondent board did not properly announce or certify the election results and that the results “should be voided” because “the final election report ... was incomplete and inaccurate.” Petitioner additionally raises various objections to the manner in which respondent board provided and canvassed absentee ballots. For relief, petitioner seeks a declaration that Morris is ineligible to serve as trustee for the term commencing July 1, 2020. Petitioner also seeks an order directing respondent board to recount all ballots cast for either petitioner or Morris as well as all ballots that were “not previously counted, but should have been counted.”
Respondent board denies petitioner’s allegations and avers that petitioner has failed to establish an entitlement to the relief requested. Respondent board further asserts that it correctly determined that Morris was eligible for the position of trustee and that it conducted the June 2020 election in compliance with the Education Law and all applicable Executive Orders issued in response to the COVID-19 pandemic.
First, I must address a procedural matter concerning petitioner’s reply. 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). 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.
Turning to the merits, in every common, union free, central, central high school, and city school district in a city having a population of less than one hundred twenty-five thousand inhabitants, annual district meetings, elections, and budget votes typically occur on the third Tuesday in May, pursuant to Education Law §§2002 and 2022. On May 1, 2020, however, in response to the ongoing state of emergency caused by the novel coronavirus pandemic, the Governor suspended these provisions, among others, and thereby “adjourned and rescheduled” such annual meetings, elections, and budget votes “until June 9, 2020,” which was “deemed the statewide uniform voting day” (Executive Order 202.26; see Executive Orders 202, 202.23). The Governor further suspended and modified sections 2003, 2004, 2022, and 2601-a of the Education Law to the extent necessary to provide that all such adjourned elections and budget votes would “take place remotely” and that “qualified voters [would] vote ... only by absentee ballot, to be provided to all qualified voters by each school district” (Executive Order 202.26).
Pursuant to Education Law §§2018-a(8) and 2018-b(9), an absentee ballot must be received in the office of the clerk of the school district or by another designee of the board not later than 5:00 p.m. on the day of the election. On June 7, 2020, the Governor suspended and modified these sections “to the extent necessary to allow any absentee ballot for an election held on June 9, 2020 and received by mail ... not later than June 16, 2020 to be canvassed for such election” (Executive Order 202.39). The Governor further ordered that “[a]ny receptacle used for hand delivery of absentee ballots in such election [would] be closed and removed at 5 p.m. on June 9, 2020,” and that “[t]he ballots therein [would] remain unopened pending delivery of mailed ballots” and “be removed and canvassed after 5 p.m. on June 16, 2020” (Executive Order 202.39).
In response to the coronavirus pandemic, the Governor also suspended and modified sections 2018 and 2608 of the Education Law to the extent necessary “to eliminate any minimum threshold of signatures required” for the nominating petition of a candidate seeking election to a board of education – “provided, however, [that such candidate] meet any other requirements necessary to be placed on the ballot, including any applicable residency and age requirements” (Executive Order 202.26).
To invalidate the results of a school district election, a petitioner must either: (1) establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or (2) demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (see Matter of Boyes v Allen, 32 AD2d 990, 991 [3d Dept 1969], affd on op below 26 NY2d 709 ; Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of the Bd. of Educ. of the Minerva Cent. Sch. Dist., 54 id., Decision No. 16,628; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905; Matter of Levine, 24 id. 172, Decision No. 11,356, art 78 dismissed Matter of Capobianco v Ambach, 112 AD2d 640 [3d Dept 1985]). 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).
In addition, Education Law §2034(6)(a) authorizes the Commissioner of Education to order a recount of the ballots in school district elections (Appeal of the Board of Education of the Hilton Central School District, 56 Ed Dept Rep, Decision No. 17,091; see generally Matter of Carville v. Allen, 13 AD2d 866, 867 [3d Dept 1961]). However, the Commissioner will not order a recount absent evidence of a substantial attack on the integrity of the tallies and the returns of the inspectors of election, such as a showing of fraud or improper conduct (Appeal of Gresty, 31 Ed Dept Rep 90, Decision No. 12,580; Matter of Murtaugh, 19 id. 179, Decision No. 10,086; Matter of Morehouse, 15 id. 27, Decision No. 9,060).
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 the 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).
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.). 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 Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Crawford, et al., 47 id. 413, Decision No. 15,739).
On this record, petitioner has failed to carry her burden of proof to annul the election results or compel a recount. First, petitioner asserts that Morris is ineligible to serve as trustee because he “failed to submit a nomination petition as required by the Governor’s Executive Order 202.26.” Specifically, petitioner claims that Morris failed to submit a petition “seeking nomination for the June 9, 2020 election.” Contrary to this contention, however, petitioner has provided a copy of a petition that Morris submitted to the district clerk on March 11, 2020, in which he nominated himself for the board seat to which he was elected. Although this petition reflects the original date upon which the election was scheduled to take place, nothing in the Education Law or Executive Order 202.26 compelled Morris to submit a new nominating petition for the revised election date. Rather, that order adjourned the May 19, 2020 election until June 9, 2020 and eliminated the signature requirement for nominating petitions, as discussed above.
Moreover, although petitioner submits a copy of a May 8, 2020 email in which respondent’s district clerk advised Morris that, “[s]ince the change of date of the election, there [were] new petitions generated with the updated information,” this email does not alter the requirements of the Education Law or the Governor’s Executive Orders. Indeed, the district clerk merely suggested that Morris “consider resubmitting [his] petition” but did not advise Morris that he was required to do so or that his March 11, 2020 nominating petition was no longer valid. Accordingly, petitioner’s claim that Morris is ineligible to serve as a trustee because he failed to submit an additional nominating petition lacks merit.
Petitioner also claims that Morris engaged in improper electioneering insofar as he “appeared to have solicited funds in exchange for ballots” and his “campaign manager collected ballots from potential candidates in exchange for ‘free’ food.” In support of these claims, petitioner submits screenshots of online postings concerning a charitable food drive operated by local businesses and a community outreach organization. Although these postings indicate that Morris accepted donations on behalf of this initiative, the postings are devoid of any references to the school district election, ballots, or Morris’s campaign generally. Accordingly, petitioner’s conclusory assertion that Morris inappropriately solicited ballots is unsupported by the evidence in the record (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301).
Petitioner’s claims concerning the canvassing and inspection of the ballots are also without merit. As respondent’s Chief Inspector for the election explains in an affidavit, “absentee ballots were canvassed after 5:00pm on June 16, 2020 pursuant to the Governor’s Executive Orders.” The Chief Inspector further indicates that an election inspector reviewed each envelope containing an absentee ballot, “checked [the envelopes] against the voter registration list,” and confirmed whether the envelopes included a signature, after which another election inspector opened the qualified envelopes and deposited the folded absentee ballots into a receptacle. Then, according to the Chief Inspector, she “read each ballot in full view of [a] camera,” which broadcast the canvassing process online, and, “[i]n reading [each] vote aloud, [she] discerned when a ballot was entirely void or partially void.”
Respondent board further submits an affidavit from the district clerk, who states that “[t]he final count of ballots not qualified to be counted ... was provided by the Chief Inspector and an Election Inspector.” Although petitioner asserts that “poll workers made determinations on the validity of votes without explanation,” she does not submit any evidence to support this contention. Similarly, while petitioner appears to object to the time or manner in which absentee ballots were canvassed, she has not alleged or proven any wrongdoing in connection therewith. Therefore, on this record, I have no basis upon which to conclude that any ballots were erroneously voided.
With respect to petitioner’s claim that respondent board did not properly certify the election results, petitioner fails to explain her assertion that the report certifying the results “was incomplete and inaccurate.” To the extent petitioner suggests that the report was incomplete because it did not state the number of ballots deemed invalid, Education Law §2034 does not impose any such requirement. Moreover, I note that the record includes a document tallying all ballots that were voided and the reasons therefor, refuting any contention that such ballots were unaccounted for in the results.
Next, petitioner objects to respondent board’s provision of absentee ballots, insofar as she claims that the “print was very small and difficult to see” and “some voters ... had problems sealing the envelopes because the glue was not working or was too old.” These claims, however, are speculative. Petitioner has not submitted any evidence, such as affidavits from voters, to establish either that such issues inhibited voters from properly casting their ballots or that such difficulties affected the outcome of the election (see Appeal of Marchesani, 44 Ed Dept Rep 460, Decision No. 15,232). Moreover, respondent’s district clerk indicates in her affidavit that she “did not receive any complaints regarding the size of the font on the ballot envelopes or any complaints concerning an inability to seal the envelopes.”
Finally, petitioner complains that respondent board’s online broadcast of the canvassing process “was not recorded” and that there were “technical difficulties with the audio.” The record reflects that respondent, in fact, offered a live broadcast of the vote count with audio. While the district clerk concedes that the audio for the live broadcast malfunctioned at one point, she asserts that “[c]ounting was paused until this issue was resolved,” and “the poll watchers ... were present during the entirety of the ballot canvassing and heard the votes being tallied live.” Accordingly, the record does not support a conclusion that any technical difficulties during the canvassing process created an appearance of impropriety or otherwise vitiated the election process (see generally Appeal of Bennett, 48 Ed Dept Rep 311, Decision No. 15,870).
In sum, petitioner has failed to meet her burden of proof to establish that any irregularities affected the outcome of the election. Therefore, there is no basis upon which to order a recount or invalidate the results of the election. To the extent petitioner’s allegations are not specifically addressed herein, I find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 The election and budget vote were held on this date pursuant to executive order, as discussed below.
 None of the other respondents have submitted an answer in this matter; however, respondent board submitted with its answer affidavits in opposition to the petition from Morris and the district clerk.
 In any event, I note that, even if petitioner had tendered proof of improper electioneering, such proof would be insufficient to invalidate the election results absent a showing that the impropriety affected the outcome of the election (Appeal of Board of Education of the Hempstead Union Free School District, 55 Ed Dept Rep, Decision No. 16,878).
 Specifically, petitioner alleges that “296 absentee’s ballots were deemed invalid vote prior to the results being read in addition to votes and ballots deemed invalid while the votes were being read” (sic).
 Moreover, the district clerk indicates that petitioner “served as her own poll watcher and was present for a majority of the election.”