Appeal of CYNTHIA CRENSHAW from action of the Board of Education of the City School District of the City of Mount Vernon regarding an election.

Decision No. 18,353

(November 9, 2023)

Ingerman Smith, LLP, attorneys for respondent, Keith T. Olsen, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from purported action of the Board of Education of the City School District of the City of Mount Vernon (“respondent” or “board”) in connection with the district’s 2023 school board election.  The appeal must be dismissed.

Petitioner was an unsuccessful candidate for one of five open board seats at the district’s May 16, 2023 annual election.  Petitioner received the sixth highest vote total with three votes fewer than the candidate who finished in fifth place.  In this appeal, petitioner requests a vote recount, the voiding of board actions taken after the election (if the recount results in petitioner’s election to the board), and the revision of respondent’s policies relating to board elections.

Respondent argues that the petition must be dismissed for failure to join necessary parties and because the relief sought is, in part, beyond the scope of the authority of the Commissioner of Education.  On the merits, respondent argues that petitioner has failed to establish that alleged irregularities occurred during the school district election, let alone met the demanding standard required to overturn the results of an election.

Initially, I must address a procedural matter relating to the scope of 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, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised 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.

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 Ed Dept Rep, 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).

Petitioner seeks a recount of the votes cast at the election, which could adversely affect the candidates who were elected to the board.  As indicated above, section 275.8 (d) of the Commissioner’s regulations specifically requires joinder of “each person whose right to hold office is disputed” in an election appeal.  Therefore, the successful candidates in the district’s May 16, 2023 election are necessary parties, and petitioner’s failure to join them requires dismissal of this appeal (Appeal of Bonelli, 59 Ed Dept Rep, Decision 17,795; Appeal of McDonough, 54 id., Decision No. 16,752; 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. 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).

Petitioner has not established that respondent violated any legal requirement or that the act of which she complains affected the outcome of the election.  The gravamen of petitioner’s argument is that respondent improperly failed to advise her of her right to observe the opening of absentee ballots on the evening of the election.  This argument is unavailing.  Respondent submits an affidavit from its district clerk asserting that the public was, in fact, invited to observe the opening and tallying of absentee ballots on the evening of the election and that “numerous” observers did so.  And even assuming that respondent had not extended this invitation, the Commissioner has previously held that there is no requirement that absentee ballots be opened in the presence of the candidate or their representatives (see Appeal of Jarmond, 56 Ed Dept Rep, Decision No. 17,108; Appeal of Georges, 45 id. 453, Decision No. 15,380).

Additionally, petitioner argues that the closeness of the vote (i.e., petitioner received three votes fewer than the next closest candidate) justifies a recount.  Absent proof of fraud or improper conduct, however, this is not a basis upon which to order a recount (Appeal of Feder, 61 Ed Dept Rep, Decision No. 18,066 [finding that even a single vote margin does not present grounds for a recount absent proof of fraud or improper conduct]).

In sum, petitioner has failed to meet her burden of proof to establish that there were voting irregularities that affected the outcome of the election.  In light of the foregoing, I need not address the parties’ remaining arguments.

THE APPEAL IS DISMISSED.

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