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Decision No. 13,273

Appeal of PAUL F. TOMKINS, SR. from action of the Board of Education of the Horseheads Central School District regarding a school district election.

Decision No. 13,273

(October 11, 1994)

Sayles, Evans, Brayton, Palmer & Tifft, Esqs., attorneys for respondent, James F. Young, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a resident of the Horseheads Central School District, seeks an order invalidating the election held by the Board of Education of the Horseheads Central School District ("respondent") on May 11, 1994. The appeal must be dismissed.

On May 11, 1994, respondent held its annual election to fill three positions on the board. Five candidates had previously filed nominating petitions to have their names placed on the ballot to fill these vacant board seats. Approximately two days before the election, a resident named Timothy O'Connor announced that he was conducting a write-in campaign for election to the board.

To accommodate the needs of the election, four voting machines were placed at the high school and four other voting machines were placed at other locations in the district. The voting machines are owned by the Town of Horseheads, which has a contract with an election machine custodian who sets up the voting machines. At approximately 6:00 p.m., district officials were notified that one of the voting machines at the high school ran out of paper for write-in ballots. District officials immediately called the election machine custodian who stated that he could not replace the paper. Because the district had not had a write-in candidate for several years, many voters were unfamiliar with how to cast a write-in ballot. Apparently, many such voters lifted the strip on the voting machine causing the paper roll to advance without casting a vote. District officials informed voters that the other three machines at the high school had paper for write-in votes and advised them to use one of those three other machines. Voters experienced no difficulties with those machines or any of the other four machines used throughout the district. The election results were:

Nancy Peckham 3,135

Dana Smith 2,616

Russ Soucy 2,462

Richard Custer 2,115

James Lamb 1,877

Timothy O'Connor 924

Nancy Peckham, Dana Smith and Russ Soucy were declared winners. This appeal ensued.

As a preliminary matter, my review of the record reveals that petitioner offers new allegations in his reply. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR 275.3). It is not meant to buttress allegations contained in the petition or add assertions that should have been contained in the petition (Appeal of Konkoski, 33 Ed Dept Rep 303; Appeal of Taber, et al., 32 id. 346; Appeal of Mermelstein, et al., 30 id. 119). Accordingly, in making this determination, I have not considered the new allegations included in petitioner's reply.

I also note that Nancy Peckham, Dana Smith and Russ Soucy have not been joined as parties in this appeal, even though petitioner seeks to declare their election null and void. Because a decision on the merits of this claim would involve the rights of those individuals, they are necessary parties to this appeal (Appeal of Moessinger, 33 Ed Dept Rep 487; Appeal of Reed, et al., 33 id. 216; Appeal of Kalinowski, 32 id. 476). Therefore, the appeal must be dismissed for failure to join them.

With respect to the merits, petitioner contends that the election results should be annulled because the lack of paper at one of the voting machines prevented him from casting a write-in ballot. Respondent concedes that petitioner may not have been able to cast a write-in ballot if he used the voting machine that was out of paper, but contends that such problem, while unfortunate, is not a sufficient reason to invalidate the election. To invalidate the results of a school district election, petitioner must establish not only that an irregularity occurred, but also that but for the irregularity, the results of the election would have been different (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 also be substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46).

On the record before me, petitioner has proven that an election irregularity occurred. As indicated, respondent concedes that petitioner may not have had the opportunity to cast a write-in ballot because of the lack of paper. However, this irregularity alone is insufficient to overturn the election results, because there is no proof in the record that it actually affected the outcome of the election. Indeed, the successful candidates for the board were elected by a substantial margin over the write-in candidate. The third place winner alone received 1,538 more votes than Mr. O'Connor. Accordingly, petitioner would have to show that the absence of paper deprived 1,539 voters of the ability to vote for Mr. O'Connor. Because of the absence of such proof, there is no evidence that the irregularity actually affected the results of the vote. Under these facts, the election results cannot be overturned.

Petitioner also asserts that the election results must be invalidated because respondent allegedly violated Education Law '2031-a by electioneering within 100 feet of a polling place. Specifically, petitioner contends that respondent posted campaign literature for candidates on a bulletin board near the voting machines at the high school. The Court of Appeals 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 candidate. The record indicates that the literature in question included information on how to cast a write-in ballot and factual information regarding the budget and the board candidates who had been nominated by petition. There is no evidence in the record to support petitioner's assertion that the literature was other than factual or that it urged voters to cast their ballot in favor of a particular candidate or position. The bulletin did not contain information about Mr. O'Connor simply because he announced his candidacy shortly before the election after it had already been prepared.

I have reviewed petitioner's remaining contentions and find them without merit.