Decision No. 13,631

(June 28, 1996)

Seth Buchman, Esq., attorney for petitioners

Brown & Dierdorf, Esqs., attorney for respondent, Paul W. Brown, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the results of a special district election that authorized the Board of Education of the Lyme Central School District ("respondent") to proceed with two proposed construction and renovation projects. The appeal must be dismissed.

Petitioners are Linda Cochran and nine other taxpayers of the Lyme Central School District. The district has one building for the instruction of its 430 kindergarten through grade twelve students. On November 20, 1995, respondent held a special election to vote on two proposed building projects. The first proposition related to the purchase of a site adjoining the parking lot of the school for $56,000, to provide additional parking and to prepare for any future expansions the school might require. This proposition passed by a vote of 300 to 215.

The second proposition involved a number of reconstruction and renovation projects including a library/media expansion, the addition of special education classrooms, roof repair, fuel tank replacement, new overhead doors for the bus garage, and projects designed to bring the district into compliance with new fire code standards and increase accessibility for the handicapped. The cost for this project was $1,539,000. This proposition passed by a vote of 279 to 236. This appeal ensued.

Petitioners allege that the results of the vote should be annulled because respondent failed to provide information to all property owners, the information that was distributed was misleading, there was no provision for absentee ballots and voter registration, and because the vote should have been held during the summer, when more of the district's property owners are present in the district.

Respondent contends that petitioners are not residents of the district because they only live in respondent's district during the summer months and are legal residents of different districts during the remainder of the year. Respondent also contends that it is not required to provide absentee ballots and, in any event, there is no proof that the use of absentee ballots would have changed the outcome of the election. Respondent also states that it mailed information packets to all district residents and asserts that the mailings were factual and provided a thorough explanation of the two propositions. Finally, respondent denies that it intentionally schedules district elections during the winter months to prevent summer residents from participating in those elections.

Education Law '2012 requires a person to be a resident of a school district for 30 days in order to qualify to vote in any election in that district. A person may only be registered to vote at his or her legal residence and no person can simultaneously have two residences within the meaning of that term (Appeal of Nelson Beck, 74 St Dept Rep 78). Residence for the purpose of voting "is the fixed and permanent home of the elector from which the Constitution, as well as the Election Law, contemplates that the elector shall register and vote" (Palla v. Suffolk County Board of Elections, 31 NY2d 36, 334 NYS2d 860). It is constitutionally permissible to require that a person be a resident of a place to vote there (Williams v. Salerno, 792 F2d 323). A person's residence is deemed to be the place where a person maintains a "fixed, permanent and principal home to which he, wherever temporarily located, always intends to return" (NY Elec. Law '1-104(22)). The test for determining a person's bona fide residence for voting purposes is based on the individual's intention, it is the place that is the center of the individual's life, the locus of his primary concern (Ramey v. Rockefeller, 348 F. Supp. 780).

Ownership of real property within a school district alone does not qualify an individual to vote in the elections of that district (Matter of Silber, 15 Ed Dept Rep 355). A requirement of bona fide residence in order to vote in a particular district advances the substantial and compelling state interest of preserving the basic conception of a political community by disenfranchising property owners who are not district residents (Dart v. Howell, 45 AD2d 47, 356 NYS2d 118, aff'd 35 NY2d 847, 363 NYS2d 86). Petitioners do not indicate if they are registered to vote in the districts in which they reside during the majority of the year, or respondent's district, where they reside during the summer. There is insufficient evidence in the petition to determine which is their bona fide residence for voting purposes. Therefore, it is unclear whether petitioners were even eligible to vote in respondent's election.

Petitioners' objection to the timing of the election is based on unsupported speculation that a summer date would have led to a different outcome. Even if that were the case, Education Law does not require a board of education to set special election dates based on the temporary presence or absence of some district voters (Matter of Gilbert, 20 Ed Dept Rep 174). Respondent submitted a list of the dates on which district budget elections have been conducted from 1980 to 1995. The majority of the budget votes were held in May, as required by Education Law '2002. June and July were the next most frequent months in which district elections were conducted over that period. Discussions relating to the election being disputed by petitioners began a full year in advance of the election date and continued through the summer of 1995. There is no evidence to support petitioners' contention that certain residents were excluded from the process.

Education Law '2010 states that proceedings of district meetings are not illegal for want of due notice to all persons qualified to vote, unless the omission was wilful and fraudulent (Appeal of Hebel, 34 Ed Dept Rep 319). Respondent in this case made a reasonable effort to contact all eligible voters of the district. The record indicates that respondent mailed information packets to all district residents. The packets were sent to all postal box holders in Chaumont and Three Mile Bay, the only two post offices in respondent's district, to the parents of all students who reside in the district, but outside the mailing areas of Chaumont and Three Mile Bay, and to all district residents living outside Chaumont and Three Mile Bay who had requested school mailings. In view of these facts, the election cannot be considered void for lack of notice.

Petitioners contend that the information respondent sent to district voters relating to the construction projects was misleading because it made the projects appear to be mandated by law. Boards of education are authorized to distribute factual information which describes the impact of a vote (Appeal of Ruiz, 32 Ed Dept Rep 107; Appeal of Loriz, 27 id. 376; Matter of Lewis, 13 id. 137). My review of the flyers and the ballot shows that they contain factual material that is not misleading. Respondent also held numerous public meetings over the course of the year prior to the election to answer voters' questions. There is no basis in the record to conclude that the information distributed by respondent was improper.

Petitioners argue that if the district had implemented voter registration and supplied absentee ballots the election may have had a different result. The use of absentee ballots is an area within the discretion of respondent board of education. Education Law '2018-a requires a board of education to provide absentee ballots only in counties with a population of one million or more. According to the 1990 United States Census, Jefferson County, where respondent district is located, had a population of 111,766, projected to grow to 118,000 by 1995. Therefore, respondent is not required to provide district voters with absentee ballots. Even if respondent had provided absentee ballots to petitioners and others similarly situated, there is no proof that the result of the election would be different. The petition states that respondent refused 15 requests for absentee ballots for this election. Fifteen votes against either proposition would not have changed the outcome since the first proposition passed by a margin of 85 votes and the second proposition by a margin of 43 votes. Petitioners additionally provided evidence that 65 absentee ballots were used in the last general election in the town of Lyme. However, this information is irrelevant to the issue of respondent's refusal to exercise its discretionary authority under Education Law ''2018-a or 2018-b to provide for the use of absentee ballots in the school district's elections.

There is a presumption of regularity in the conduct of school district elections. The Commissioner will not set aside the results of a school district election unless there is evidence that the alleged irregularities affected the outcome of the election (Appeal of Sinkov, 34 Ed Dept Rep 524). The alleged improprieties must be substantial and not merely technical (Appeal of Walsh et al., 34 Ed Dept Rep 544; Appeal of Taylor, 31 id. 46). A district election will not be overturned due to election irregularities unless the petitioner establishes that the irregularities actually 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). There is no basis in the record before me to support an allegation of impropriety sufficient to overturn the election in question.

Finally, petitioner also contends that harsh winter conditions in the district prevent senior citizens and handicapped persons from voting, which is a violation of the Americans With Disabilities Act (ADA). Petitioner does not present proof that any voters were denied access to the polling place. The election was held in the school lobby and gymnasium, both of which are accessible to the handicapped, according to respondent. In any event, such a claim would assert a violation of '504 of the Rehabilitation Act of 1973 (29 U.S.C. '794) as well as the ADA (42 U.S.C. ''12101-12133), enforcement of which is within the jurisdiction of the federal courts, the U.S. Department of Justice and the U.S. Department of Education (Appeal of Roberts, supra).

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

THE APPEAL IS DISMISSED.

END OF FILE

---