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Decision No. 13,339

Appeal of ALAN SINGER, ANDRE MC DONNAUGH, JIMMY PEREZ and SUSAN JORDAN from action of the Board of Education of the Hempstead Union Free School District regarding a school district election.

Decision No. 13,339

(January 24, 1995)

Carlucci & Legum, Esqs., attorneys for petitioner, Steven G. Legum, Esq., of counsel

Beckman, Henoch, Peterson & Peddy, P.C., attorneys for respondent, Gilbert Henoch, Esq., of counsel

SOBOL, Commissioner.--Petitioners seek an order invalidating the election held by the Board of Education of the Hempstead Union Free School District ("respondent") on June 28, 1994. The appeal must be dismissed.

On June 28, 1994, respondent held the school district's annual election to fill two positions on the district's board. Petitioners are three candidates in that election and one current member of respondent board. The election results for the two positions were:

Position 1 Position 2

Frank Ashby 404 Dan Hester 383

Andre McDonnaugh 323 Alan Singer 227

Jimmy Perez 233 Anthony Cappa 207

Tonya McDougald 179 Sheriva Scott 125

Mirianda Ulceus 104

Cynthia Harleston 77

Frank Ashby was declared the winner of the first position by 81 votes and Dan Hester was declared the winner of the other position by 156 votes. This appeal ensued.

I will first address a procedural issue. Mr. Ashby and Mr. Hester have not been joined as parties to this appeal, even though petitioners seek to declare their election null and void. Because a decision on the merits of this claim would involve the rights of Mr. Ashby and Mr. Hester, they are necessary parties to this proceeding (Appeal of Moessinger, 33 Ed Dept Rep 487; Appeal of Kalinowski, 32 id. 476; Appeal of Healy, 29 id. 391). Therefore, the appeal must be dismissed for failure to join them.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits. 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; 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 the election provisions of the Education Law (Matter of Levine, 24 Ed Dept Rep 172, aff'd sub nom; Capobianco v. Ambach and Bd. of Educ. 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, petitioners must establish that the improprieties are substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46). 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). Upon the record before me, I find petitioners have failed to meet that burden.

Petitioners claim that the election process was tainted because, during the course of the election, a power outage occurred. Petitioners allege that during the power outage "voting continued although inspectors were not present and proper procedures and precautions were not followed." I find petitioners' contention unpersuasive. The record indicates that electrical power was lost for approximately 18 minutes. When the power outage began, emergency lighting automatically turned on. Moreover, the record indicates that the curtain on each voting machine cannot be closed or the machine unlocked for the next voter unless the inspector pushes a button on the side of the machine. During the loss of power, the record indicates that each election inspector remained at his or her machine, and no one improperly voted. A few individuals were in the voting booths or in line to vote when power was lost. Using a flashlight or the light provided by the emergency lighting, those individuals were able to cast their vote. Based on the foregoing, there is no evidence that any irregularity occurred as a result of the loss of electricity during the district election.

Petitioner also alleges that some voters failed to sign the poll list and some registration cards were not dated or initialed. However, petitioners have failed to present evidence that these alleged irregularities affected the outcome of the election. The fact that some voters may have inadvertently failed to sign the poll list is a technicality. Similarly, the fact that election inspectors failed to date or initial some registration cards is also technical in nature. Absent evidence that these technical failures affected the outcome of the election, they are insufficient reasons to overturn the election (Appeal of Demos, 34 Ed Dept Rep 54; Appeal of Roberts, supra; Appeal of Bleier, 32 id. 63).