Decision No. 13,062

(December 8, 1993)

SOBOL, Commissioner.--In two separate appeals, petitioners challenge the results of an annual meeting at which voters approved the South Colonie Central School District ("respondent") budget and re-elected Dagmar Murphy to the board of education. Since the claims in both appeals are based on the same election, I have consolidated them for decision. The appeals are dismissed.

On May 5, 1993, Ms. Murphy was re-elected to the board of education and the budget was passed by 2 votes. Petitioners challenge the election of Ms. Murphy, asserting respondent electioneered to ensure her re-election. Petitioners also challenge the results of the budget vote based on the alleged improper dissemination and tabulation of absentee ballots. Petitioners seek to overturn the election and budget vote. Respondent contends that petitioners have failed to demonstrate by competent evidence that any qualified voters were actually denied the right to vote or that any electioneering occurred.

I must first address a procedural matter. While petitioners seek to remove Ms. Murphy from office, they have failed to name her as a party in this proceeding. A person whose rights would be adversely affected by a determination of an appeal in favor of petitioner must be joined as a party (Appeal of Uciechowski, 32 Ed Dept Rep 511; Appeal of Aarseth, 32 id. 626; Appeal of Basile, 32 id. 330; Appeal of Osterman, 30 id. 290). Since a ruling in petitioners' favor could adversely affect Ms. Murphy's status on the board, the petition must be dismissed for non-joinder of a necessary party.

Regarding the merits, it is well-established that there is a presumption of regularity in the conduct of an election. The Commissioner of Education will not set aside election results in the absence of evidence of alleged irregularities that probably affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd. 26 NY2d 709; Appeal of Brower, 29 Ed Dept Rep 145); are so pervasive in nature as to vitiate the electoral process (Matter of Gilbert, 20 Ed Dept Rep 174); or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Matter of Levine, 24 Ed Dept Rep 172, aff'd sub nom; Capobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 112 AD2d 640). Implicit in these principles is the recognition that there are rare cases in which errors in the conduct of a school election have been so pervasive that the fundamental fairness of the election is vitiated (Appeal of Como,et al., 28 Ed Dept Rep 483). Moreover, to warrant setting aside an election, the improprieties alleged must be substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46). Finally, petitioners have the burden of establishing the facts upon which they seek relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). In the matters before me, petitioners have not met that burden.

The focus of petitioners' challenge appears to be on the alleged electioneering of Ms. Murphy and school district employees on her behalf. The record reflects, however, that no PTA or PTSA members were coerced by respondent or Ms. Murphy to campaign on her behalf, as petitioners assert. Furthermore, contrary to petitioners' contentions, Ms. Murphy's presence at PTSA meetings, as both a parent of a student and a liaison member of the board of education, can hardly be characterized as electioneering. Concerning a speech Ms. Murphy gave to school employees prior to her re-election, the record reflects this speech was given not as an attempt to secure votes, but in her official capacity as the president of the board of education.

Petitioners also maintain that the election must be annulled because the school district's newsletter contained errors in biographical information presented about the candidates. While a board of education has a right to present informational material to the voters concerning a proposed annual budget (Education Law '1716), and individual board members are entitled to express their views about issues concerning the district (Appeal of Bosco, et al., 32 Ed Dept Rep 554; Appeal of Weaver, 28 Ed Dept Rep 183), the Court of Appeals has held in Matter of Phillips v. Maurer, 67 NY2d 672, that school district funds may not be used to exhort the electorate to support a particular position. Petitioners appear to claim that school district funds were used to exhort the public to vote for a particular candidate by printing errors about other candidates. The record reflects that any errors were not an attempt to exhort the electorate. In fact, there was even an error in the newsletter regarding Ms. Murphy, the candidate respondent was purportedly promoting. Additionally, one error cited by petitioners states that candidate Sandra Williams, petitioner, has a masters degree, when she does not. Crediting petitioner with a degree she does not possess simply does not prove respondent was using school district funds in an attempt to promote Ms. Murphy. To the contrary, this mistake might be construed by some as actually aiding petitioners. Accordingly, there is no basis to support petitioners' request that the election be overturned.

Petitioners also assert that voters were disenfranchised because of insufficient public information on how to obtain an absentee ballot, and that at least one voter voted both by absentee ballot and at the polls. Petitioners, however, supply no proof that anyone voted twice and offer no affidavits by anyone that they failed to vote because they were unable or unaware that they could obtain an absentee ballot. Furthermore, the record reflects that respondent distributed information about how to obtain absentee ballots, thereby refuting petitioners' claim of voter disenfranchisement due to lack of public information.

Petitioners assert they were unable to obtain evidence that one voter voted twice because respondent failed to give them access to signature cards, in violation of the Freedom of Information Law ("FOIL") (Public Officers Law '87, et seq.). The appropriate forum for addressing alleged FOIL violations is in the Supreme Court of the State of New York, not in a '310 appeal to the Commissioner of Education (Appeal of Mitzner, 32 Ed Dept Rep 333; Appeal of Mitzner, 32 id. 101; Application of Eisner, 31 id. 517). Nevertheless, the record reflects that although respondent did not provide petitioners access to voter registration cards, it did give them a list of persons who had cast ballots and the list of absentee ballot voters. Petitioners could, therefore, have reviewed these lists and presented evidence, if it existed, that an individual voted twice. They did not, and in the absence of such proof, I will not set aside the election (Appeal of Ben-Reuben, et al., 33 Ed Dept Rep __; Appeal No. , dated November 24, 1993; Appeal of Como, supra; Matter of Murtagh, 19 Ed Dept Rep 179).

Petitioners also contend that the election results must be overturned because relatives of board members acted as election inspectors. Education Law '2025 authorizes the appointment of election inspectors and contains no restriction barring relatives of board members from those positions. There is, therefore, no legal basis to overturn the election because relatives of board members served as election inspectors.

I have reviewed petitioners' remaining contentions and find that they provide no basis for setting aside the results of the election or budget vote.

THE APPEALS ARE DISMISSED.

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