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Decision No. 13,533

Appeal of RAYMOND ZACARRO from action of the Board of Education of the North Babylon Union Free School District regarding the conduct of an election.

Decision No. 13,533

(January 17, 1996)

Guercio & Guercio, Esqs., attorneys for respondent, Gary L. Steffanetta, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the election of Geraldine McKinnon to the Board of Education of the North Babylon Union Free School District ("respondent"). The appeal must be dismissed.

On June 14, 1995, respondent held its annual election, a special election and budget vote. Petitioner, Geraldine McKinnon, Thomas Farrone and Paul Della Universita were candidates for a three-year term of office for one of three board positions. The election results were 746 votes for McKinnon, 629 votes for petitioner, 602 votes for Della Universita and 443 votes for Farrone.

At a special meeting held on June 19, 1995, the district's chief election inspector certified the election results. On July 6, 1995, the successful candidates were sworn into office. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on August 24, 1995.

Petitioner alleges that serious irregularities occurred that affected the outcome of the election, including respondent's exclusion of registered high school students from voting and electioneering. Petitioner requests that I stay the seating of Geraldine McKinnon and order a new election. Respondent contends that petitioner has failed to join Geraldine McKinnon, a necessary party. Respondent further claims that petitioner has not met his burden of proof. Finally, while respondent admits to minor errors in the conduct of the election, it denies that these issues warrant a new election.

Before reaching the merits, I will address the procedural issues raised by respondent. Respondent contends that since petitioner failed to join the winning candidate, Geraldine McKinnon, as a party to this proceeding, the appeal must be dismissed. The petitioner has failed to comply with 8 NYCRR 275.8(d) which states, in pertinent part:

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. (Emphasis added.)

See, e.g., Appeal of Huff, 35 Ed Dept Rep 148; Appeal of Moessinger, 33 id. 487; Appeal of Damilatis, 33 id. 465.

Accordingly, the appeal may not proceed without the joinder of the successful candidate, whose right to hold office petitioner challenges.

Respondent also contends that petitioner has failed to prove that the alleged election violations were so significant as to warrant overturning the election. The Commissioner of Education will set aside the results of a school district election when it is probable that the irregularities affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, 301 NYS2d 644, aff'd NY2d 709, 308 NYS2d 873; Appeal of the Bd. of Educ., Fonda-Fultonville CSD, 33 Ed Dept Rep 682). An election may also be set aside where irregularities are so pervasive in nature as to vitiate the electoral process (Matter of Gilbert, 20 Ed Dept Rep 174).

The record shows that while respondent did not have an updated list of Suffolk County voters and turned away some high school students who attempted to vote before 3:00 p.m. when the updated list was found, the fact that some students may not have voted is insufficient to warrant a new election. As respondent points out, petitioner lost to the winning candidate by 117 votes. Petitioner presents two affidavits from voters who stated that they were not permitted to vote but would have voted for petitioner. These affidavits are insufficient to warrant my overturning the election. Respondent further points out that even if all registered high school voters had voted for petitioner, that number would still be insufficient to change the results of the election. While petitioner has not met his burden of proof, respondent is nevertheless reminded of its obligation to ensure fair elections and maintain accurate voting records in future elections.

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