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Decision No. 13,486

Appeal of WALTER F. GREENING from actions of the Board of Education of the Valley Central School District, Superintendent Beverly Ouderkirk, and District Clerk Peter Roden regarding voter registration and election fraud.

Decision No. 13,486

(September 29, 1995)

Anderson, Banks, Curran & Donoghue, attorneys for respondents, James P. Drohan, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the voter registration and election procedures used by the Valley Central School District in May 1994. The appeal must be dismissed.

Both petitioner and respondents agree that, prior to the May 1994 annual school district election, the board of the Valley Central School District adopted a personal registration system for district elections pursuant to Education Law '2014(1). Petitioner contends that on May 10, 1994, respondents permitted high school students to register to vote in class rather than appearing personally before the district's board of registration on the district's registration day in violation of Education Law '2014(2). Petitioner further contends that on May 18, 1994, respondents allowed 642 people whose names were not recorded on the district's list of registered voters to vote illegally in the school district election. Petitioner also claims that the superintendent failed to sue those unqualified voters for $10 each as required by Education Law '2020. Finally, petitioner alleges that the district clerk provided voter lists to a school organization in support of that organization's efforts to solicit support for the school budget and specific school board candidates.

Petitioner seeks the removal of the board members elected in the May 1994 district election, removal of other board members who participated in the challenged actions, discipline of the superintendent and district clerk, imposition of monetary fines on unqualified voters, and action by the Commissioner of Education to prevent future election fraud in the district.

Respondents deny any wrongdoing with respect to the specific allegations and raise a number of defenses, including failure to join necessary parties and untimeliness.

As a threshold matter, this petition must be dismissed for failure to join necessary parties. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Frasier, 34 Ed Dept Rep 315). Commissioner's regulation '275.8(d) specifically provides, in pertinent part:

If an appeal involves the validity of a school district meeting or election . . . a copy of the petition must be served upon the . . . board of education . . and upon each person whose right to hold office is disputed and such person must be joined as a respondent.

Petitioner seeks removal of the individual board members who were elected in May 1994. Those board members would clearly be adversely affected if the relief petitioner requests were granted. Therefore, they are necessary parties, and petitioner's failure to join them requires the dismissal of this appeal.

The petition must also be dismissed for untimeliness. Appeals under Education Law '310 must be instituted within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). The Commissioner may excuse a failure to commence an appeal for good cause shown in the petition. The challenged actions transpired in May 1994 and petitioner did not serve his petition until April 1995, 11 months later. Petitioner acknowledges his lateness and explains that he was unaware of the registration and voting provisions of the Education Law until January 1995. Ignorance of the law, however, is no excuse for delay in initiating an appeal. Moreover, petitioner failed to commence this appeal within 30 days after he became aware of the laws upon which he bases his arguments, thus casting doubt on his proffered explanation for delay. Accordingly, the petition must be dismissed as untimely.

In light of the foregoing disposition on procedural grounds, I will not reach the merits of this appeal. However, I will address petitioner's most serious allegation, i.e., that 642 unqualified voters were allowed to vote in the challenged election, to clarify the law in this area.

Petitioner interprets Education Law '2014 to limit eligibility to vote in school district elections to those who appear on the district register. He therefore concludes that 642 people whose names did not appear on the district register voted illegally. Petitioner's argument, however, is flawed. Election Law '5-612(2) specifically states:

Notwithstanding the provisions of sections nineteen hundred six, twenty hundred fourteen and twenty-six hundred six of the education law with respect to registration of voters, any person, otherwise qualified to vote who is registered under the provisions of this article shall be entitled to vote at all school district meetings or elections without further registration.

Therefore, any district resident who is registered to vote with the county board of elections is entitled to vote at all school district meetings and elections even if the individual's name is not otherwise listed on the school district register (Appeal of Prosky, 34 Ed Dept Rep 202; Appeal of Demos, 34 id. 54; Appeal of Shortell, 27 id. 190).

Of the 642 names which did not appear on the school district registration list, 616 appeared on the county list. As to the 26 names which were not on either list, I find that even if each of these votes were invalidated, petitioner has failed to demonstrate that this would alter the outcome of the election. At the district election held on May 18, 1994, the school budget passed by a margin of 437 votes (2,286 in favor--1,849 opposed), a building proposition passed by a margin of 777 votes (2,257 in favor--1,480 opposed), and of the six candidates running for three open board seats the margin of victory between the third and fourth highest vote getters was 517 votes (Margaret Venable received 2,628 total votes as compared with Raymond Lustig who received 2,111 total votes). 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, 301 NYS2d 644, aff'd 26 NY2d 709, 308 NYS2d 873; Appeal of Prosky, supra; Appeal of Roberts, 33 Ed Dept Rep 601). Upon the record before me I find that, even if this appeal had not been procedurally defective, petitioner failed to meet his burden of proof.