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Decision No. 12,720

Appeal of ROSEMARY MARTIN from action of the Board of Education of the Bayport-Blue Point Union Free School District and Charlene Lehmann, relating to a school district election.

Decision No. 12,720

(June 16, 1992)

Cahan, Wishod, Wishod & Lamb, Esqs. attorneys for petitioner, Joel M. Markowitz, Esq., of counsel

Pelletreau & Pelletreau, Esqs., attorneys for respondent Bayport-Blue Point Union Free School District, John J. Hart, Jr., Esq., of counsel

Patrick Kevin Brosnahan, Jr., Esq., attorney for respondent Charlene Lehmann

SOBOL, Commissioner.—Petitioner, an unsuccessful candidate for election to the Board of Education of the Bayport-Blue Point Union Free School District, seeks an order declaring invalid a portion of the results of the election held on June 26, 1991, and directing that a new election be held for the contested seat on the board. The appeal must be dismissed.

On June 26, 1991 the annual meeting of the Bayport-Blue Point Union Free School District was held. Petitioner was a candidate for a vacancy on the board of education for a term commencing July 1, 1991 and ending June 30, 1994. There were two other candidates for the same office. Following the annual meeting, the first count of the votes revealed that petitioner had received 1777 votes and was, therefore, second to respondent Lehmann, who received 1778 votes. Subsequently, another vote which had been place in an envelope and sealed on the instructions of the district clerk was opened at the district clerk’s office; that vote was in favor of respondent Lehmann. Therefore, pursuant to the final count, petitioner lost to respondent Lehmann by a margin of two votes. Respondent Lehmann was seated as a member of the board at the organizational meeting conducted on July 2, 1991. This appeal followed.

Petitioner contends that there were sufficient irregularities in the conduct of the annual meeting and vote to justify setting aside the results. Specifically, petitioner alleges that a newsletter sent out by the district prior to the vote informed recipients that registration for those who had not registered to vote would be held on Thursday, June 19, 1991. June 19, 1991 was, in fact, a Wednesday. Attached to the petition are affidavits from four district residents who allege that they received the newsletter in the mail, that they determined that their opportunity to register was on Thursday of the week in question, and that they either went to, or were on their way to the place of registration, when they were advised that registration had taken place the previous day, i.e., Wednesday, June 19,1991. The official notice of the annual meeting published by respondent board in the local newspapers contained the correct information, i.e., that registration of voters would take place on Wednesday, June 19, 1991. The affiants who executed the affidavits also state that, had they been able to register and vote in the election, they would have cast their votes for petitioner Martin.

Additionally, petitioner argues that on the day of the election, an individual identifying himself as Anthony M. Fiorentine appeared to vote at the district polling place. Upon examination of the registration list, the election inspector found that somebody had already voted under the name of Anthony M. Fiorentine, and had signed Mr. Fiorentine’s registration card. After producing identification documents which established that he was, in fact, Anthony M. Fiorentine, this individual was given an absentee ballot to complete and the ballot was sealed in an envelope on which Mr. Fiorentine certified that he had not previously voted in the election. This ballot was segregated from the remainder of the absentee ballots which had been received by the district. Upon opening the absentee ballot, it was determined that Mr. Fiorentine had cast his ballot for respondent Lehmann.

As a third basis for requesting that the results of the vote be set aside, petitioner alleges that 28 of the 75 absentee ballots received and counted in the vote were invalid by reason of defects on the face of the ballots and/or on the applications for the absentee ballots. Petitioner argues that the combination of these alleged irregularities, coupled with the close margin of the vote, shows that the results of the election would probably have been different if the alleged irregularities had not occurred.

Respondent board contends that petitioner has failed to prove that the alleged irregularities are sufficient to demonstrate a probability of different results, had the alleged irregularities not occurred, or that the alleged irregularities were so pervasive as to nullify the vote. Specifically, respondent board contends that petitioner has waived any alleged irregularities as to either the Fiorentine vote or the 28 absentee ballots identified in the petition, since no objections were raised at the time the votes were opened and counted. Respondent board also alleges that it complied with Education Law " 2018-a in that a list of all persons to whom absentee ballots had been issued was available in the district clerk’s office for public inspection during regular office hours until the day of the election, and that the list was also posted in two conspicuous places during the election. Respondent board alleges that there were no challenges to the qualifications of any of the people to whom absentee ballots had been mailed either on the day of the election, or before that date. Respondent further alleges that each of the absentee voters identified in the petition was qualified to vote in the election either by virtue of personal registration or by registration as a voter with the office of the county clerk. With respect to the Fiorentine vote, respondent board alleges that there is no method which could be used to determine how the first voter who voted under the name Anthony Fiorentine voted in the election, and that even if the second Fiorentine vote is not counted, petitioner still would have lost the election by a margin of one vote. Concerning the school district newsletter, respondent board alleges that due to problems caused by the delay in finalizing a State budget, the newsletter was withheld from mailing until June 19th, and, therefore, it would not have been possible for anyone to have received the district newsletter until June 20th, the day after the date established for voter registration. Respondent board further alleges that the official notice of meeting accurately set the date for personal registration as Wednesday, June 19, 1991.

Respondent Lehmann has submitted an answer which raises essentially the same allegations and contentions raised by the board of education and discussed above.

In Matter of Levine, 24 Ed Dept Rep 172, aff’d subnom; Capobianco v. Ambach, et al., 112 AD2d 640, 492 NYS2d 157, the Commissioner held that under certain circumstances, irregularities related to the acceptance of absentee ballots could constitute sufficient grounds to set aside an election. In that case, the board of education accepted absentee ballots on the day of the election, thereby violating Education Law " 2018-a(2)(a). The record in that case also demonstrated that the board of education failed to maintain the required list of persons to whom absentee ballots had been issued and to post the list in a conspicuous place during the election as required by Education Law " 2018-a(6). The Commissioner determined that by accepting absentee ballots on the day of the election and failing to post the list of the individuals to whom absentee ballots had been issued, the board had made it impossible for an individual to review and challenge the qualifications of absentee voters. This, together with the closeness of the voting results, constituted sufficient ground to set aside the election. In contrast, the record in this case establishes that respondent board did post the required list of absentee ballots, and, therefore, petitioner had an opportunity to examine and review that list and to challenge the qualifications of any voter who had been issued an absentee ballot. No such challenge was raised, however, until thirty days after the election results had been announced. Education Law " 2018-a(b) requires that any challenge to the qualifications of a person to whom an absentee ballot has been issued must be made either in writing before election day or during the election before the close of the polls. Petitioner failed to institute any challenge to the absentee ballots in the manner required and therefore her objections to the absentee ballots are procedurally defective. I, therefore, find that petitioner waived her rights to invalidate the absentee ballots in question.

Similarly, I find petitioner’s arguments concerning the Fiorentine ballot without merit. Petitioner was present at the time the ballot was opened and had an opportunity to object to its being counted in the election. Having failed to raise an objection at the time of the counting of the ballot, I find that petitioner has waived her right to do so in this appeal.

Petitioner’s arguments concerning the incorrect date in the district newsletter are insufficient to set aside the election results. It is uncontested that the official notice of the meeting and election did contain the correct day and date for personal registration. Notwithstanding respondent’s representation that the newsletter could not have reached anyone in time, several individuals appear to have received it. Failure to provide proper notice, however, could constitute grounds for setting aside the result of the vote only if that failure is wilful and fraudulent (Education Law " 2010). There is no evidence in the record that the error in the newsletter was wilful or fraudulent. Therefore, I do not find that the error relied upon by petitioner constitutes sufficient ground to set aside the vote. Since I find petitioner’s arguments insufficient to warrant an order invalidating the election, the appeal must be dismissed.