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Decision No. 12,600

Appeal of PAUL P. CUMMINGS from actions of Michael J. Duszynski, Virginia L. Parker, Jane Wiercioch, Madeline DiRienzo, Diane L. Rowe, Raymond Schwartz and Kenneth A. Swain, Jr., relating to the conduct of a school district election.

Decision No. 12,600

(November 8, 1991)

Phillips, Lytle, Hitchcock, Blaine & Huber, Esqs., attorneys for respondents, Mark T. Perry, Esq., of counsel

SOBOL, Commissioner.--Petitioner, an unsuccessful candidate for election to the Board of Education of the Depew Union Free School District, seeks an order declaring the election of respondent board member Michael J. Duszynski to be invalid. Petitioner also requests that I remove all seven respondent board members on the ground that they failed to supervise properly the conduct of the election. The appeal must be dismissed.

On June 11, 1991 an election was held among three candidates to fill a vacancy on the Depew board. The election results indicated that respondent Duszynski received 887 votes, petitioner, 827 votes, and Joseph Vanderpool, 464 votes. Duszynski was declared the winner, and this appeal ensued.

Petitioner maintains that the results of the election must be set aside because respondents Duszynski and Schwartz improperly engaged in electioneering at the polling place on behalf of Duszynski. Education Law '2031-a(2) provides, in pertinent part, that "no person shall do any electioneering within the polling place or within one hundred feet therefrom . . . ." Petitioner contends that Duszynski and Schwartz distributed campaign literature to voters within one hundred feet of the polling place and that Duszynski actively campaigned within the polling place. Duszynski and Schwartz dispute those allegations. They maintain that when they distributed campaign literature, they were more than one hundred feet from the polling place. Duszynski further asserts that he was in the school building on official district business during the time of the election and that he did talk casually with certain individuals, but did not engage in any electioneering.

With respect to the issue of fact presented, the burden is on petitioner to prove that the alleged violations occurred (Appeal of Greenspan, et al., 29 Ed Dept Rep 397; Matter of Bernocco, et al., 20 id. 343). In view of the conflicting affidavits submitted by all parties, I do not find that petitioner has met his burden. Even if the alleged violations had occurred, they would not form a basis for invalidating the election. The results of school district elections will not be set aside without a showing that the alleged irregularities or violations probably affected the outcome of the election (Matter of Boyes v. Allen, 32 AD2d 990, aff'd 20 NY2d 709; Appeal of Hable, 30 Ed Dept Rep 73; Appeal of Brower, 29 id. 145). Petitioner has submitted no evidence establishing the probability that the alleged irregularities affected the outcome of the election. I will not overturn the results of the election merely on the basis of unsubstantiated allegations.

Petitioner further contends that the superintendent, in violation of district policy, allowed unidentified individuals to enter the school building where the election was held after the polls had been closed. Petitioner maintains the election must be annulled because of the superintendent's action. I find petitioner's argument unpersuasive. The superintendent's action, even if proven, did not violate the Education Law, and there is no evidence that his action affected the outcome of the election (Matter of Boyes v. Allen, supra).

Petitioner also seeks the removal of the entire board for their alleged failure to properly supervise the conduct of the election and to respond to the alleged violations committed by respondents Duszynski and Schwartz. As noted above, the record before me fails to establish that the election was conducted improperly. Accordingly, there is no basis for removing respondent board members from their positions.

Because this appeal must be dismissed, it is not necessary to address the remaining defenses raised by respondents.