Decision No. 13,644

(August 8, 1996)

SHELDON, Acting Commissioner.--Petitioner, an unsuccessful candidate in the May 3, 1995 election for the Board of Education of the Plainview-Old Bethpage Central School District ("respondent"), alleges voting irregularities. Accordingly, she asks me to order a recanvass and recount of the voting machines and absentee ballots and to invalidate absentee applications/ballots and paper ballots where irregularities exist. The appeal must be dismissed.

Respondent raises a number of defenses including failure to name necessary parties, untimeliness with respect to petitioner's challenge of absentee ballots, failure to overcome the presumption of regularity of an election, failure to demonstrate that the alleged irregularities affected the outcome of the election, and failure to state grounds upon which relief can be granted.

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:

In the challenged election, five candidates ran at large for three seats. Petitioner seeks a recount of the election results, which disputes the right of the prevailing candidates to hold office. Therefore, they are necessary parties, and petitioner's failure to join them requires the dismissal of this appeal.

The appeal must also be dismissed on its merits. Analysis of election irregularities requires a two-part inquiry. Both prongs of this analysis must be satisfied for the Commissioner to disturb the outcome of an election (Appeal of Goldman, 35 Ed Dept Rep 126). First, petitioner must prove improper conduct on the part of the respondent, such as a violation of Education Law or Commissioner's regulations (Appeal of DiMicelli, 28 Ed Dept Rep 327, Appeal of Amoia, 28 id. 150). Second, petitioner must establish that the alleged irregularities actually 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 Roberts, 33 Ed Dept Rep 601), were so pervasive that they vitiated 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 Education Law (Matter of Levine, 24 Ed Dept Rep 172, aff'd sub nom; Capobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 112 AD2d 640, 492 NYS2d 157). 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). Petitioner has the burden of establishing all the facts upon which he seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163).

Petitioner claims five specific irregularities with regard to the May 1995 election. Certain allegations are undisputed. First, reporting of the election results from the Plainview Old-Bethpage Middle School required two telephone calls. The initial telephone report of the voting results did not include absentee ballots. When this was discovered, a second call was made minutes later to report the absentee ballots. Second, the method of recording votes from the voting machines at the Old Bethpage School differed from that used in past years. Previously, two people read the numbers and two recorded them. In the challenged election, one read the numbers and one recorded. Neither of these uncontested allegations is improper nor forms a legal basis for relief.

Third, petitioner alleges improper electioneering at one polling site. Petitioner alleges that someone overheard a registrar at the Plainview-Old Bethpage Middle School tell a voter to "vote them all out." Respondent concedes that a board member notified the District Clerk of the incident, at which time she immediately called the polling place to ensure that no further electioneering would take place. However, improper electioneering alone is not a sufficient basis for invalidating the results of an election (Appeal of Goldman, supra; Appeal of Cummings, 31 Ed Dept Rep 147). Petitioner must also produce evidence sufficient to show that the electioneering affected the outcome of the election. Here, petitioner does not even allege any facts which would tend to suggest that the incident affected the election results. Therefore, the alleged electioneering is no basis for me to disturb the election results.

Petitioner also challenges the validity of seven absentee ballot applications. Education Law ' 2018(a) requires that any challenge to the qualifications of a person to whom an absentee ballot has been issued must be made in writing before election day or during the election before the close of the polls. Petitioner did not challenge the absentee ballots until two weeks after the election, and therefore her objections to the absentee ballots are untimely. Consequently, I find that petitioner waived her rights to invalidate the absentee ballots in question (Appeal of Martin, 31 Ed Dept Rep 519).

Finally, petitioner contends that paper ballots (affidavit votes) were improperly opened in violation of Education Law ' 2019-a(2). However, petitioner fails to explain or substantiate this allegation.

THE APPEAL IS DISMISSED.

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