Appeal of ANNA MEGERELL and CYNTHIA YAGER from action of the Board of Education of the City School District of the City of Rome regarding an election.

Decision No. 17,996

(June 8, 2021)

Ferrara Fiorenza PC, attorneys for respondent, Heather M. Cole, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal from actions of the Board of Education of the City School District of the City of Rome (“respondent” or “board”) in connection with the district’s 2020 budget vote and school board election.  The appeal must be dismissed. 

On June 9, 2020, the district held an election for three vacant board positions.[1]  Joseph Mellace, John Nash, and Karen Fontana received the most votes and were elected to the board.  Petitioners Megerell and Yager were unsuccessful candidates.

In a letter to respondent’s acting district clerk dated June 18, 2020, petitioner Yager requested a recount of the votes for the school board candidates conducted on June 16 and 17, 2020.  By letter dated June 19, 2020, respondent’s assistant superintendent for operations and management (“assistant superintendent”) advised petitioner Yager that “[t]he New York State Education Law does not permit a recount of the vote.”  This appeal ensued. 

Petitioners raise numerous allegations of election-related impropriety, arguing, for example, that certain individuals were not offered an opportunity to cast votes; that petitioners were not allowed to be present when the absentee ballots were canvassed and tallied; and that the district improperly allowed (and allows) a board member to simultaneously serve as district clerk.  Petitioners request a recount of the votes cast in the 2020 election.

Respondent argues that the petition must be dismissed for lack of personal service.  Respondent also contends that the Commissioner lacks jurisdiction over petitioners’ allegations under the Freedom of Information Law (“FOIL”) or Open Meetings Law.  On the merits, respondent argues that petitioners have failed to establish that any alleged irregularities affected the outcome of the election, vitiated the electoral process or demonstrated a clear and convincing picture of informality to the point of laxity.

First, I must address several procedural issues.  On August 30, 2020, petitioners submitted an email containing additional allegations in support of their petition.  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 does not permit parties to raise new claims or defenses 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).  Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Petitioners’ August 30, 2020 submission consists of their analysis of documents that respondent submitted with its answer.  While petitioner could have addressed this evidence in a reply, the August 30, 2020 email was sent over two weeks after the date when their reply was due; it is also unverified.  Therefore, I decline to accept this submission into the record (see Appeal of Parker, 56 Ed Dept Rep, Decision No. 17,054).

To the extent petitioners allege violations of FOIL and the Open Meetings Law, such claims must be dismissed for lack of jurisdiction.  Section 89 of the Public Officers Law vests exclusive jurisdiction over alleged FOIL violations in the Supreme Court of the State of New York (Appeal of H.A., 57 Ed Dept Rep, Decision No. 17,215; Appeal of Olka, 48 id. 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747).  Therefore, such allegations may not be adjudicated in an appeal pursuant to Education Law § 310, and I have no jurisdiction to address the FOIL allegations raised in this appeal.  Additionally, Public Officers Law § 107 vests exclusive jurisdiction over alleged violations of the Open Meetings Law in the Supreme Court of the State of New York (Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of McColgan and El-Rez, 48 id. 493, Decision No. 15,928).  Therefore, such allegations may not be adjudicated in an appeal pursuant to Education Law § 310, and I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

Respondent argues that the petition must be dismissed for lack of personal service.  Section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).  Additionally, effective April 7, 2020, during the time period of any movement restrictions or school closures directed by the Governor pursuant to an Executive Order during the COVID-19 crisis, a petitioner may effectuate alternative service on a school district in the following manner:

(1) by mailing the petition, notice of petition and all supporting papers by first class mail in an envelope bearing the legend “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... to the attention of the district clerk and superintendent of schools ... ; and (2) on the same date as the mailing, emailing the petition, notice of petition and all supporting papers under the subject heading “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... to both the district clerk and superintendent of schools ....  Service shall be deemed complete upon the completion of both steps identified above (8 NYCRR 275.8 [f]).

According to petitioners’ affidavit of service, the petition was served by petitioner Yager via email and U.S. mail on July 13, 2020 to numerous board members, including the three declared board candidate winners.  Respondent argues that petitioners could not avail themselves of the alternative procedure in 8 NYCRR 275.8 (f) because, on the date of the purported service of the petition, movement was not restricted in the region; the district’s administrative offices were open for business; and summer school “was occurring.”[2]  Respondent does not otherwise contest that petitioners effectuated service as required by 8 NYCRR 275.8 (f).

Under the circumstances of this appeal, I decline to dismiss the appeal for lack of personal service.  The Board of Regents adopted the version of 8 NYCRR 275.8 (f) applicable here in April 2020, shortly after the Governor of New York State declared a State disaster emergency for the entire State of New York on March 7, 2020.  The language of the amendment reflects the nature of the restrictions imposed by the Governor in March and April 2020 – including the closure of schools, directing non-essential work personnel to work from home, and restricting gatherings of individuals.  The overall intent of the amendment to 8 NYCRR 275.8 (f), however, was “to address numerous issues resulting from the interruptions caused by the COVID-19 crisis.”  Therefore, I find that it is within the spirit of the amendment to permit alternative service under the circumstances of this appeal and decline to dismiss the appeal on that basis.[3] 

Turning to the merits, to invalidate the results of a school district election, the 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 [1970]; 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; Appeal 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 a recognition that it is a rare case where errors in the conduct of an election are so pervasive as to vitiate the fundamental fairness of the election (see 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 existence of irregularities or the effect of irregularities provides an insufficient basis on which to annul election results (Appeal of Holliday, 60 Ed Dept Rep, Decision No. 17,947; Appeal of Dodson, et al., 54 id., Decision No. 16,764).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

On this record, petitioners have not established that respondent violated any legal requirement or that any of the acts of which they complain affected the outcome of the election.  Petitioners’ allegations are speculative in nature and unsupported by evidence demonstrating that any improprieties occurred.  For example, while petitioners contend that the district clerk did not notify the winners of the election in writing, all they submit is a guidance document that identifies this as a legal requirement.[4]  Similarly, while petitioners assert that “[s]everal ... people ... were refused a ballot to vote,” their only evidence consists of a single email from a district resident.[5]  Petitioners also indicate that it was “unclear” whether respondent counted three votes submitted by affidavit but submit no proof in support thereof.  Allegations such as these do not demonstrate that any irregularities occurred, let alone that they 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 (e.g. Matter of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, affd sub nom Capobianco v. Ambach, et al., 112 AD2d 640 [3d Dept 1985]).[6]

Petitioners have also failed to prove that certain actions taken by respondent in response to the COVID-19 pandemic, such as suspending in-person registration and offering a live broadcast of the counting and tallying of the absentee ballots, were illegal or unreasonable.  As indicated above, the June 2020 election took place in the midst of the COVID-19 pandemic.  As such, the record supports respondent’s argument that it struck a “delicate balance” between district residents’ ability to participate in the election and protecting the health and safety of voters, district employees, and election workers by modifying its usual procedures.

Finally, petitioners suggest that a new election should be ordered because respondent’s district clerk also served as a board member.  This dual role, however, is specifically permitted by Education Law § 2130 (1), which is made applicable to small city school districts by Education Law § 2503 (1).  Education Law § 2130 states that:  “In every union free school district the board of education shall have the power to appoint one of their number, or some other individual as clerk of the board of education of such district” (see also Application of Aarseth, 32 Ed Dept Rep 626, Decision No. 12,936; Matter of Hurtgam, et al., 22 id. 219, Decision No. 10,938; 1950 N.Y. Op. Atty. Gen. No. 158; see generally General Municipal Law § 801).  I have no authority to disregard the plain language of this statute; therefore, petitioner’s claim must be dismissed.

In sum, petitioners have failed to meet their 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 petitioners’ allegations are not specifically addressed herein, I find them to be without merit.

THE APPEAL IS DISMISSED. 

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