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Decision No. 13,325

Appeal of CYRUS D. FRASIER from action of the Board of Education of the Oppenheim-Ephratah Central School District concerning the conduct of a school board election.

Decision No. 13,325

(December 30, 1994)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Dennis T. Barrett, Esq., of counsel

SOBOL, Commissioner.--Petitioner, an unsuccessful candidate for a position on the board, challenges the result of a school district election held by the Board of Education of the Oppenheim-Ephratah Central School District ("respondent board") on June 8, 1994. The appeal must be dismissed.

The Oppenheim-Ephratah Central School District has not provided for personal registration of voters at school meetings or elections, as authorized in Education Law '2014. In 1991, respondent board did, however, adopt a resolution authorizing the use of absentee ballots pursuant to Education Law '2018-b.

In January 1994, a new school district clerk took office. Pursuant to Education Law '2018-b(2)(g), the clerk requested and received from the Fulton County Board of Elections a registration list of "permanently disabled" voters pursuant to Election Law '5-612. The clerk reviewed the list of 20 names, determined that 3 persons "were no longer eligible" and provided absentee ballots to the remaining 17 permanently disabled persons.

In the time period leading up to the June 8, 1994 annual meeting, the clerk also received informal requests for absentee ballots from 11 other persons. None of those individuals completed formal applications as required by Education Law '2018-b(2)(a) through (f). The clerk provided absentee ballots to each of those 11 persons.

As described above, the clerk issued a total of 28 absentee ballots and maintained a list of such ballots at her office for public inspection during regular office hours prior to the election. The clerk's affidavit states that she also "had the list available at the polling place during the election for inspection by any person who wished to do so." As of 5:00 p.m. on the day of the election, 19 absentee ballots had been returned. Eleven absentee ballots were received from permanently disabled voters and eight from other voters who had made informal requests.

When the votes were tallied, the results were as follows:

Candidate Voting Machine Absentee Ballots Total Votes

Bursese 145 16 161

Brandt 142 16 158

Young 133 17 150

Frasier 143 4 147

Herringshaw 57 4 61

Candidates Bursese and Brandt were declared elected for three-year

terms, and candidate Young was declared elected for a one-year term to fill a vacancy.

Petitioner objects to respondent's failure to require applications for absentee ballots and claims that those ballots were not issued in accordance with normal procedures. Petitioner requests that I determine the legality of the absentee ballots.

Respondent admits that the ballots were issued to non-disabled voters without proper application, but claims that the permanently disabled voters were properly issued absentee ballots and that all those who received absentee ballots properly signed and dated the statement required by Education Law '2018-b(6)(b). Respondent further alleges that petitioner failed to verify the petition in this matter and failed to join and serve necessary parties pursuant to 8 NYCRR '275.8(d). Respondent additionally claims that the petition fails to state a claim because there is no allegation that any person who voted by absentee ballot was ineligible to receive such a ballot.

The appeal must be dismissed because the petition is defective. Commissioner's regulation '275.5 requires that a petition be verified by the oath of at least one of the petitioners. In this matter, the purported affidavit of verification is sworn to by a person other than petitioner and states that the affiant "is not in this proceeding" (emphasis in original). Although the answer points out this deficiency, petitioner has failed to serve a reply or any other paper which would attempt to correct the deficiency. It has been consistently held that when the petition is not verified, the appeal must be dismissed (Appeal of Ballard-Jones, 33 Ed Dept Rep 701; Appeal of Bd. of Educ., City School District of the City of New York, 31 id. 297; Appeal of Bolecek, 26 id. 154; Matter of Gillispie, 9 id. 63).

The appeal is also dismissed for failure to name and serve essential parties. Commissioner's regulation '275.8(d) specifically provides: "If an appeal involves the validity of a school district meeting or election, or the eligibility of a district officer, a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent." There is no indication in the record before me that papers have been served upon successful candidates Bursese, Brandt or Young, each of whom would be potentially affected by the successful prosecution of this appeal. As a result, the appeal must be dismissed for failure to join necessary parties (Appeal of Uciechowski, 32 Ed Dept Rep 511; Appeal of Weaver, 28 id. 183; Matter of The Baldwin Assn. of Indep. Taxpayers, 22 id. 282).

Although I am constrained to dismiss the appeal, I must discuss certain aspects of the procedure used in this election because, although respondent understands and admits to certain errors on its part, it fails to acknowledge certain other mistakes.

In the case of non-disabled applicants for absentee ballots, Education Law '2018-b requires a very detailed application which is designed to ascertain both the status of the applicant as a qualified voter and the potential voter's eligibility to use an absentee ballot rather than appearing in person at the polls. Education Law '2018-b(2)(a) through (f) specifically solicits information both as to the voter's qualifications as well as the reasons for his or her absence and inability to vote at the polls. In the alternative, a voter may send a letter pursuant to subdivision (4) requesting an absentee ballot, but still must complete the same application form and return it with his or her ballot. It should be noted that the statement required on the reverse side of the return envelope by Education Law '2018-b(6)(b) does not provide the same information required in the application, nor is it a substitute for that information. Respondent failed to comply with these requirements.

Respondent has also failed to fully comply with subdivision (7) of the statute. While the clerk's affidavit alleges that the list of persons to whom ballots had been sent was maintained in her office up to election day, merely having a list "available at the polling place" does not satisfy the requirement that such list be posted in a conspicuous place or places during the election, as required by '2018-b(7).

I also note that the return envelopes used by respondent, all of which were signed by the nineteen persons who returned absentee ballots, contain wording that is no longer correct because of an amendment to '2018-b(6)(b) made by chapter 506 of the Laws of 1991. It is, therefore, clear that respondent was still using election materials in 1994 that had been rendered inaccurate by action of the Legislature and the Governor nearly three years earlier.

While these lapses evince a lack of careful compliance with Education Law '2018-b which must be corrected in the future, they are not a basis for overturning the election. The results of an election will be set aside only if it is demonstrated that an irregularity has occurred and that there is a probability the results would have been different but for the irregularity (Matter of Boyes v. Allen, et al., 59 Misc 2d 975, rev'd 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Uciechowski, supra). Petitioner has neither alleged nor proven that any person who was not both qualified to vote and eligible to use an absentee ballot actually voted in the election, nor that the result would have been different if the proper procedures had been followed.

I have considered the parties' remaining contentions and find them without merit.