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Decision No. 13,084

Appeal of BARBARA D. GREENE and PETER WRONA from action of the Board of Education of the Little Valley Central School District concerning conduct of a school election.

Decision No. 13,084

(December 31, 1993)

Williams & Brown, Esqs., attorneys for respondent, Thomas P. Brown,

Esq., of counsel

SOBOL, Commissioner.--Petitioners, unsuccessful candidates for election to respondent board of education, seek an order invalidating the election held on May 19, 1993. The appeal must be dismissed.

On May 19, 1993, respondent Board of Education of the Little Valley Central School District held its annual election. Four candidates sought two positions on the board. The election results were:

Richard Williams - 208 votes

Barbara Ross - 201 votes

Peter Wrona - 127 votes

Barbara Greene - 121 votes

Richard Williams and Barbara Ross were declared winners. This appeal ensued.

As a preliminary matter, in a letter made part of the record before me, respondent objects to petitioners' "statement of facts/memorandums of law" because it allegedly contains new allegations and exhibits not previously stated or set forth in any pleading. Respondent's objection is well taken. A memorandum of law may not be used to belatedly add assertions or exhibits which should have been included in the petition (Appeal of Albert, et al., 32 Ed Dept Rep 615; Appeal of Johnson, 26 id 42). Accordingly, I will not consider such new allegations or exhibits in this appeal.

With respect to the merits, petitioners allege that the election results should be annulled because the president of the teachers' union improperly used school district resources to campaign for particular candidates and to urge passage of the budget. Respondent disputes that allegation. To invalidate the results of a school district election, it is necessary to establish not only that an irregularity occurred, but also that the irregularity probably had an effect on the outcome of the election (Matter of Boyes v Allen, 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Steenrod, 28 Ed Dept Rep 131; Appeal of Young, 26 id. 272). 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). In addition, 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 this appeal, petitioners have indeed proven that some election irregularities occurred. The record reveals that, without the prior knowledge or consent of respondent, the president of the teachers' union used a district telephone during the course of the election to contact two individuals urging them to vote. The union president also used district resources to produce and distribute a one page document which urged faculty members to vote in a particular way. In Matter of Phillips v Maurer, 67 NY2d 672, the Court of Appeals held that school district funds may not be used to exhort the electorate to support a particular position. Moreover, it is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election (Appeal of Weaver, 28 Ed Dept Rep 183). In the instant matter, the union president improperly used district property to espouse a partisan position. The fact that the cost to the district was insignificant is irrelevant. The use of the telephone, school supplies and copier by the union president involved the use of school property, resulting in some expense to the district, which is improper (Stern v Kramarsky, 84 Misc 2d 447; Appeal of Weaver, supra).

Moreover, petitioners have demonstrated that respondent failed to comply with Education Law '2030-a in connection with the May 19 vote. Education Law '2030-a prohibits electioneering within 100 feet of a polling place during a school district election. That statute also requires election inspectors to post markers at a distance of 100 feet from the polling place which indicate such electioneering prohibition. Respondent admits that such markers were not posted during the May 19 vote.

However, these improprieties alone are not sufficient grounds to overturn the election results, because there is no proof in the record that they actually affected the outcome of the election. In this appeal, both successful candidates for the board were elected by a substantial margin. Moreover, the budget and three propositions were approved by almost a 3 to 1 margin.

Because of the large margins of victory, the absence of proof that the complained of irregularities affected the results of the vote, respondent's lack of prior knowledge or consent to the actions of the teachers' union president and the absence of any evidence of intentional failure to post the '2030-a marker, the election results cannot be overturned. I must caution respondent, however, to take the steps necessary to ensure in the future that its facilities and resources are not used for partisan purposes and that '2030-a markers are properly posted.

I have reviewed petitioners' remaining contentions and find they are without merit.