Decision No. 18,137
Appeal of the BOARD OF EDUCATION OF THE WHITNEY POINT CENTRAL SCHOOL DISTRICT, CHRISTINE WIDDALL, TYANNA MOSEMAN, BRIAN JEKER, and ERIK SCULLEY regarding an election.
Decision No. 18,137
(June 29, 2022)
Coughlin & Gerhart, LLP, attorneys for petitioner, Nicholas S. Cortese, Esq., of counsel
ROSA., Commissioner.--Petitioner, the Board of Education of the Whitney Point Central School District (“petitioner” or the “board”), seeks an order pursuant to Education Law § 2034 (6) for a recount of the ballots in its 2022 school district election. The appeal must be sustained.
On May 17, 2022, the board held its annual meeting and election. The ballot included, among other things, a proposition to approve the district budget and an election of candidates to fill two open seats on the board. Four candidates ran for the two open seats: incumbent Dr. Christine Widdall, incumbent Brian Jeker, Tyanna Moseman, and Erik Sculley.
After the polls closed, the poll workers counted the ballots and certified the following election results:
School Budget Approval
Board of Election (vote for two):
Dr. Christine Widdall: 237 votes
Tyanna Moseman: 209 votes
Brian Jeker: 207 votes
Erik Sculley: 190 votes
The board subsequently voted to certify the election results in open session.
Thereafter, the district clerk realized there were inconsistencies in the final results. Specifically, the poll workers had certified that a total of 441 votes were cast with regard to the school budget proposition, but only 433 ballots were cast in the election. Upon examination, the district clerk found additional mathematical errors on the poll workers’ tally sheets. This appeal ensued.
Petitioner seeks an order pursuant to Education Law § 2034 (6) (a) authorizing a recount of the ballots, arguing that the poll workers’ improper conduct in counting the votes may have resulted in an incorrect count, potentially compromising the legitimacy and integrity of the 2022 school district election.
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 ; 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. 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).
Education Law § 2034 (6) (a) authorizes the Commissioner of Education to order a recount of the ballots in school district elections (Matter of Carville v Allen, 24 Misc 2d 812, mod and affd 13 AD2d 866). However, a recount will not be ordered absent 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 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).
Here, petitioner presents evidence that the poll workers acted improperly in tallying and certifying the votes. In an affidavit, the district clerk avers that the poll workers refused to comply with the district’s Poll Clerk Instruction Manual when they decided to count the ballots in a different manner. Pursuant to the manual, the chairperson must “verbally announce” the votes while two poll workers separately tally the count. After all of the votes are announced, the separate tallies are compared to ensure they match. Instead, the poll workers unilaterally opted to split the ballots between two groups and tally them separately; they did not exchange ballots, and thus each group of ballots was only verified once. The district clerk also states that she offered the poll workers calculators “on several occasions,” which they refused.
The poll workers’ method of counting the ballots resulted in multiple errors. The poll workers certified a total of 441 votes on the budget issue, whereas the district clerk explains that 433 votes were cast and 1 vote was invalidated. On the Closing of Poll Certification form, the poll workers certified vote counts that contained clear mathematical errors. The number of tallies marked also does not match the numbers the poll workers added to come up with the total counts in some instances. These discrepancies are particularly troubling because the second open seat on the board was won by only two votes. Therefore, on this record, I find that petitioner has met its burden of proving that improper conduct affected the integrity of its election and that a recount is warranted. Accordingly, the appeal is sustained and petitioner is directed to recount the ballots cast in its 2022 school district election. Given the poll workers’ disregard for petitioner’s procedures, petitioner is hereby authorized, and encouraged, to utilize different poll workers.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the actions of petitioner board of education in canvassing and declaring the results of the ballot with respect to the vote on the school district election on May 17, 2022, be, and hereby are, annulled; and
IT IS FURTHER ORDERED that a recount, recanvass, and recertification of the vote be held as soon as practicable upon the issuance of this decision.
END OF FILE
 Candidates Dr. Christine Widdall, Brian Jeker, Tyanna Moseman, and Erik Sculley asked to be joined as petitioners and are referred to as “petitioner” along with the board.
 For example, the certification form erroneously states that 185 votes cast plus 12 absentee ballots is equal to 207 votes.
 For example, although the number of “no” votes for the school budget proposition appears to have been counted correctly, equaling 30, 32, and 6 on each of the tally sheets, the poll workers appear to have added together 30, 43, and 6 and ultimately certified that there were 79 votes against this proposition.