Decision No. 18,167
Appeal of the BOARD OF EDUCATION OF THE MONTICELLO CENTRAL SCHOOL DISTRICT regarding an election.
Decision No. 18,167
(August 2, 2022)
Guercio & Guercio, LLP, attorneys for petitioner, Anthony J. Fasano and Stephanie A. Denzel, Esqs., of counsel
ROSA., Commissioner.--Petitioner, the Board of Education of the Monticello Central School District (“petitioner” or the “board”), seeks an order annulling the election results and ordering a recount to update the vote totals for its 2022 school district election. The appeal must be dismissed.
On May 17, 2022, the board held its annual election and budget vote. Seven candidates ran for three open board seats: Lori Orestano-James, Victoria LaRusso, Stacy Sharoff, Ashley Reilly, Mary Beth Bastone, Jennifer Holmes, and Jimmy B. Crawley.
The district held its election in five polling locations. Each location hosted a single voting machine, except for election District 1, the Robert J. Kaiser Middle School (“RJK”), which had two machines. These machines are referred to by the board, and herein, as the “Kaiser” and “Thompson” machines. At the close of voting, the election inspectors in each location “printed the tape[s] containing the results of each election machine” and canvassed the absentee ballots. Each chief election inspector then certified the results from their locations and reported them to the district clerk. The district clerk contacted the district’s assistant superintendent for business, Lisa Failla (“assistant superintendent”), who entered the results into a digital spreadsheet. The spreadsheet included a single line for machine votes at each polling location, as well as lines for absentee votes and vote subtotals. The district clerk added an additional line to the spreadsheet to accommodate RFK’s use of two voting machines.
The board then declared the results of the election using the final totals provided in the assistant superintendent’s spreadsheet. The results were as follows:
Lori Orestano-James: 414
Victoria LaRusso: 534
Stacy Sharoff: 455
Ashley Reilly: 482
Mary Beth Bastone: 384
Jennifer Holmes: 411
Jimmy B. Crawley: 153
These totals did not include 20 affidavit ballots that remained unopened because, as a result of the margins of victory between the candidates, the ballots would not change the results of the election.
Upon further investigation, the assistant superintendent realized that the vote count for RJK did not include the results from the Kaiser machine. As the assistant superintendent explained,
I realized that while the vote numbers for each site were accurate, the formula used in the Total Votes row [of the excel spreadsheet] ... did not update when I added the second row for the machine results from RJK. Accordingly, the total vote numbers provided and declared by the Board did not include the votes from the Kaiser machine.
With the votes from the Kaiser machine accounted for, the updated results of the election were as follows:
Lori Orestano-James: 564
Victoria LaRusso: 711
Stacy Sharoff: 622
Ashely Reilly: 637
Mary Beth Bastone: 518
Jennifer Holmes: 534
Jimmy B. Crawley: 223
The public information officer subsequently posted these revised results. The revised totals did not change the outcome of the budget vote or the three board seats but resulted in smaller margins of victory for the winners of seats two and three. Specifically, Ashely Reilly received 15 more votes than Stacy Sharoff, while Jennifer Holmes received 16 more votes than Mary Beth Bastone.
On May 18, 2022 the district clerk conducted an “informal review to determine how many of the affidavit ballots were cast by voters who were registered, and thus how many would be valid.” She determined that at least six of the twenty voters were ineligible to vote; as a result, she concluded that the remaining 14 ballots could not have impacted the outcome of the election. This appeal ensued.
Petitioner maintains that the errors described above may have impacted the election results. As a result, petitioner requests that the Commissioner order a recount that would allow the district to canvass the affidavit ballots and update vote totals. Alternatively, petitioner requests that the Commissioner declare that overturning the May 17, 2022 election results is unnecessary because there are not enough valid affidavit ballots to change the outcome of the election due to ineligibility to vote and/or inactive voter status.
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 § 2037 states that all disputes concerning the validity of an election “shall be referred to the commissioner of education for determination.” Education Law § 2034 (6) (a) specifically 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).
The crux of petitioner’s claim is that that the affidavit ballots should be canvassed to ensure that those votes would not change the outcome of the election. Petitioner bases this request on the fact that the margin of victory for seats two and three—15 and 16 votes respectively—was less than the total number of affidavit ballots. While an irregularity occurred in the tabulation of votes, petitioner has not proven that this error affected the outcome of the election. 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 the Board of Education of the Massapequa Union Free School District, 59 Ed Dept Rep, Decision No. 17,747). Thus, petitioner’s claims must be dismissed.
Petitioner has also failed to prove that any irregularities were so pervasive that they vitiated the electoral process or demonstrated informality to the point of laxity in adherence to the Education Law (see Appeal of Goethe and Bennett, 61 Ed Dept Rep, Decision No. 18,108; compare Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905). As stated above, a recount will not be ordered absent a substantial attack on the integrity of the tallies and the return of the inspectors of election, such as a showing of fraud or improper conduct. The inaccurate vote count was due to a simple computing error in the spreadsheet developed by the assistant superintendent. This does not rise to the level of fraud or improper conduct.
I have considered petitioner’s remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 The district clerk affirms that the district is a “personal registration district,” divided into five election districts (see Education Law § 2014; Appeal of Dunn, 59 Ed Dept Rep, Decision No. 17,809).
 The district clerk also affirms that four of the ballots came from voters who were listed as inactive. Although they did not appear as inactive in the poll lists provided to the district, the voters were identified as inactive after election day.
 In any event, as indicated above, the district clerk opined that there were not enough affidavit ballots to impact the results of the election, since 6 of the 20 voters would have been deemed ineligible.