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Decision No. 13,282

Appeal of LAWRENCE S. PROSKY from action of the Board of Education of the Bellmore Union Free School District and Sherry Skolnik regarding the conduct of a school district election.

Decision No. 13,282

(November 3, 1994)

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Florence T. Frazer, Esq., of counsel

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

On May 4, 1994, the respondent board held its annual election. Petitioner, a candidate for election, lost by 55 votes to Sherry Skolnik. In this appeal, petitioner challenges the election of Ms. Skolnik, citing voting irregularities primarily with the dissemination of absentee ballots. Respondents contend that petitioner has failed to demonstrate by competent evidence that irregularities affected the outcome of the election.

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 election in the absence of evidence 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 Roberts, 33 Ed Dept Rep 601), are so pervasive that they vitiate the electoral process (Appeal of Roberts, supra; Appeal 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 election provisions of the Education Law (Appeal 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 it is a rare case where errors in the conduct of a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483). To warrant setting aside an election, petitioner must establish that the improprieties are substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46). Petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). Upon the record before me, I find petitioner has failed to meet that burden.

Petitioner claims the election process was tainted because absentee ballots were systematically and improperly distributed prior to the receipt of applications for such absentee ballots. While respondent concedes that five absentee ballots were distributed prior to receiving applications for them, this clearly does not amount to a systemic problem. The record indicates that, other than these five, no other absentee ballots were improperly distributed. In view of the margin of victory in this case -- 55 votes -- it is clear that the improper distribution of five absentee ballots did not affect the outcome of the election. Thus, it is not grounds for overturning the vote.

Petitioner also contends that some votes were cast by individuals not registered with the school district 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 Damilitas, 33 Ed Dept Rep 465; Appeal of Como, et al., 28 Ed Dept Rep 483; Appeal of Shortell, 27 id. 190). The record indicates that all voters in the election in question had either registered with the school district or the county board of elections. Petitioner's contention is therefore without merit, because when an individual is otherwise eligible to vote in a school district election, the failure to register with the school district is of no consequence.

I have considered petitioner's other claims and find them without merit.