Appeal of LISA KATZ and HALI HERMAN from action of the Board of Education of the North Merrick Union Free School District; Cynthia Seniuk, as superintendent; Joanne Long, as district clerk; Ed Corona and Tracey Miller regarding a school district election and budget vote.

Decision No. 18,071

(January 24, 2022)

Minerva & D’Agostino, P.C., attorneys for petitioner, Christopher G. Kirby, Esq., of counsel

Ingerman Smith L.L.P., attorneys for respondent, Neil M. Block, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal purported actions of the Board of Education of the North Merrick Union Free School District (“board”); superintendent Cynthia Seniuk (“superintendent”); district clerk Joanne Long (“district clerk”); and trustees Ed Corona and Tracey Miller (collectively, “respondents”) regarding the district’s June 2020 school board election and budget vote.  The appeal must be dismissed.

On June 9, 2020, the board held its annual budget vote and election, in which district residents voted to fill two at-large board seats.[1]  Mr. Corona and Ms. Miller were the successful candidates for these seats.  This appeal ensued.

Petitioners allege that respondents violated the Education Law by allowing “pervasive irregularities” during the election, including the dissemination of misleading information regarding the use of an absentee ballot drop box.  Petitioners also allege that the superintendent engaged in impermissible electioneering by allowing a portion of her performance review to be posted on social media by Ms. Miller.  Petitioners seek an order overturning the results of the June 9, 2020 election and vote.

Respondents argue that the appeal must be dismissed because petitioners failed to join Mr. Corona and Ms. Miller, whom they allege are necessary parties.  Respondents further contend that petitioners have failed to establish a clear legal right to the requested relief.

The appeal must be dismissed for failure to join necessary parties.  A person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that a party be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition, informing the party to appear in the appeal and to answer the allegations contained in the petition (Appeal of Sutton, 57 id., Decision No. 17,331; Appeal of Murray, 48 id. 517).  In an appeal regarding a school district election, the petitioner must join the district’s board of education as well as “each person whose right to hold office is disputed” (8 NYCRR 275.8 [d]; see Appeal of Bonelli, 59 Ed Dept Rep, Decision No. 17,795; Appeal of Duffy, 47 id. 86, Decision No. 15,634).

Petitioners seek to have the results of the June 9, 2020 election overturned, which could adversely affect the candidates who were elected to the board—Mr. Corona and Ms. Miller.  While both Mr. Corona and Ms. Miller were named in the caption of this appeal, neither was personally served with a copy of the petition.  As such, the appeal must be dismissed (Appeal of Puskuldjian, 61 Ed Dept Rep, Decision No. 18,048; Appeal of Pasquini, 53 id., Decision No. 16,500).

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, 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 26 NY2d 709 [1970]; Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Levine, 24 id. 172, Decision No. 11,356, affd sub nom. 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).

Petitioners have not demonstrated that any irregularities occurred that affected the outcome of the election.  Although petitioners object to various alleged actions of respondents, petitioners have not provided any evidence, such as affidavits from district voters, to establish that such actions impacted the results of the election in any way.  Accordingly, even if the appeal were not dismissed on procedural grounds as discussed above, it would be dismissed on the merits.

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

THE APPEAL IS DISMISSED.

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