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Decision No. 13,064

Appeal of JAMES HEIZMAN from action of the Board of Education of the Middle Country Central School District regarding a school district election.

Appeal of STEVEN BODER from action of the Board of Education of the Middle Country Central School District regarding a school district election.

Decision No. 13,064

(December 8, 1993)

Pelletreau & Pelletreau, Esqs., attorneys for respondent, Kevin A. Seaman, Esq., of counsel

SOBOL, Commissioner.--Petitioners, in separate appeals, challenge the results of an election of the Middle Country Central School District in which petitioners were not elected to the board. Since petitioners raise similar claims based on the same election, I have consolidated their appeals for decision. The appeals are dismissed.

On June 16, 1993, the Board of Education of the Middle Country Central School District ("respondent") held its annual election. Petitioner Boder lost by 20 votes and petitioner Heizman was defeated by 108. At petitioner Boder's request, the voting machines were impounded and the district clerk, who also served as the election inspector, determined that the vote tally was accurate. The election inspector did, however, discover that 164 voters who had signed their registration cards had not had their signatures dated by the election clerks. The total number of signed and dated voter registration cards was 6,130 but the total number of votes was 6,192. Therefore, of the 164 individuals whose registration cards were undated, 62 did vote in the June 16, 1993 election. (Some of the other 164 individuals whose registration cards were undated may have voted in a previous library election.)

Petitioners contend that the election must be annulled because individuals may have voted twice due to poor administration of the election by election inspectors. Petitioners also assert that the teacher's union disseminated flyers and other leaflets to confuse the electorate. Respondents contend that petitioners have failed to demonstrate by competent evidence that anyone voted twice or that the outcome of the election was affected by any irregularities.

There is a presumption of regularity in the conduct of an election. The Commissioner of Education will not set aside the results of a school district vote in the absence of evidence of the probability that the alleged irregularities 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 that the irregularities demonstrated 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 decisions is a recognition that there are rare cases in which errors in the conduct of a school election have become so pervasive that the fundamental fairness of the election is vitiated (Appeal of Como,et al., 28 Ed Dept Rep 483). 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). Moreover, 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). Petitioners have not met their burden of proof in these appeals.

Petitioners' main contention involves the election inspectors' failure to date all registration cards after they were signed by the voters. The record reflects that 6,192 people voted, but only 6,130 people had both signed and dated registration cards. However, the fact that the election inspectors failed to date 62 cards is technical in nature and is, therefore, no basis to overturn the election (Appeal of Taylor, supra). There is no evidence that this technical failure on the part of the election inspectors affected the outcome of the election.

Petitioners also challenge the manner in which election inspectors distributed small white slips of paper to monitor the voting process. A voter who had signed a registration card was to present a white slip of paper before being allowed to vote in the voting booth. Specifically, petitioners allege that the slips of paper were not numbered, some voters were not given a slip of paper and all slips of paper were not collected after an individual voted. Petitioners conclude that the fact that fewer votes were tallied than there were signatures on registration cards, coupled with the alleged improper dissemination of these paper slips, somehow proves their contention that some individuals voted twice. However, petitioners offer no proof that anyone voted twice. Instead, their allegations are merely speculative and conclusory and cannot be the basis for overturning the election (Appeal of Pickreign, 28 Ed Dept Rep 163).

Petitioners also maintain that the election must be annulled, because information was disseminated which they contend was designed to confuse the electorate. 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, 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 do not assert that school district funds were used to exhort the electorate. The flyers to which they object, at petitioners' own admission, were developed, paid for and distributed by the teacher's union. Accordingly, there is no basis to support petitioners' contention that the election be overturned because a Phillips v. Mauer violation occurred.

I have reviewed petitioners' remaining contentions and find that they do not provide a basis for setting aside the results of this school election.