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Decision No. 13,115

Appeal of JAMES P. DAMILATIS from action of Charles Schlesinger, District Clerk of the Lindenhurst Union Free School District, regarding the conduct of a school district election.

Decision No. 13,115

(February 24, 1994)

Copper, Sapir & Cohen, P.C., Esqs., attorneys for respondent, Robert Sapir, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges the election of a candidate for the Board of Education of the Lindenhurst Union Free School District (the "board"). The appeal must be dismissed.

On June 16, 1993, the board held its annual election. Petitioner, a candidate for election, lost by 11 votes to Carolyn Robertson. In this appeal, petitioner challenges the election of Ms. Robertson, citing the alleged illegal voting of 35 individuals. Petitioner also asserts that he was effectively denied access to information necessary to ascertain the extent of the alleged illegal voting. Respondent contends that petitioner has failed to demonstrate by competent evidence that any illegal voting occurred or that any alleged irregularities affected the outcome of the election.

I must first address a procedural matter. While petitioner seeks to remove Ms. Robertson from office, he failed to name her as a party in this proceeding. Petitioner also failed to name the board of education in this petition. Instead, he has named only the school district clerk, Charles Schlesinger. It is well established that a person or party whose rights would be adversely affected by a determination of an appeal in favor of petitioner must be joined as a party (Appeal of Williams, 33 Ed Dept Rep ___, Decision No. 13062, dated December 8, 1993; 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). Because a ruling in petitioner's favor could adversely affect Ms. Robertson's status on the board and the functioning of the board itself, the petition must be dismissed for non-joinder of necessary parties.

Regarding the merits, it is also well settled 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 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 matter before me, petitioner has not met that burden.

Petitioner's main contention is that 35 people allegedly voted who were not registered to vote. Education Law '2014(1) allows union free school districts to establish a system of personal registration for voters in district elections. Section 2014(2) specifically requires district officials to establish and maintain a list of district residents who have properly registered to vote prior to a district election. Additionally, residents who have registered to vote with the county board of elections and have voted in a general election at least once within the last four calendar years are entitled by Election Law '5-612(2) to vote in school district elections (Appeal of Como, et al., supra; Appeal of Shortell, 27 Ed Dept Rep 190). Election Law '5-612(3) further requires the county board of elections to deliver registration lists to school districts prior to district elections. When an individual requests to vote at a school district election, his or her registration is verified by looking at the school district's registration list. If the individual's name does not appear on the school district's register, then the county registration list must be checked.

Petitioner asserts there were 35 alleged illegal votes but only lists 32 names. Of the 32 voters petitioner claims were unregistered and ineligible to vote, 24 were registered with the county board of elections and 4 were registered prior to the election with the school district and, therefore, were eligible to vote. Another voter registered the day of the election, but the record demonstrates that this individual did not vote in the contested election. It is true, as petitioner asserts, that individuals registered in the general election whose names did not appear on respondent's registration list were allowed to vote in the June 16, 1993 election. However, petitioner is incorrect in presuming that this is a basis for overturning the election, because allowing individuals to vote who are only registered with the county board of elections and not with the school district is required by law.

Respondent concedes that two voters who were registered to vote for the library elections but not the school election, and whose names were not on the county voting list, did in fact cast votes. However, because petitioner lost the election by 11 votes, this irregularity clearly did not affect the outcome of the election. Petitioner submits not even one affidavit that the results of the election would have been different in the absence of the alleged irregularities. 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. 13055, dated November 24, 1993; Appeal of Como, supra; Matter of Murtagh, 19 Ed Dept Rep 179).

Finally, petitioner asserts he was unable to obtain evidence demonstrating that further irregularities occurred because respondent failed to give him access to voter registration lists. In essence, this is a claim of a violation of the Freedom of Information Law ("FOIL") (Public Officers Law '87, et seq.). The appropriate forum for addressing alleged FOIL violations, however, 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 respondent did give petitioner access to voting records from 9:00 a.m. until 2:00 p.m. on six days. Petitioner could, therefore, have reviewed these records and supplied evidence of alleged irregularities that affected the outcome of the election, if any existed.