Decision No. 13,649

(August 13, 1996)

Norton/Radin/Hoover/Freedman, Esqs., attorneys for respondent, Bernard B. Freedman, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner challenges the failure of the Board of Education of the Royalton-Hartland Central School District ("respondent") to post a list of absentee voters at the district's polling place during a vote on a proposition. The appeal must be dismissed.

Petitioner is a district resident. On December 12, 1995 at approximately 5:00 p.m., petitioner and his wife voted on a referendum permitting respondent to issue bonds to repair and rebuild school buildings. Upon exiting the voting machine, petitioner inquired about the list of absentee voters. He was told that there was no list posted. Upon petitioner's inquiry, the list was obtained from the office next door to the voting place and was posted at that time. The referendum submitted to the voters was approved by a vote of 1188 to 494. This appeal ensued.

Petitioner alleges that respondent failed to comply with its legal notice regarding the scheduled referendum which stated that a list of absentee voters would be posted conspicuously at the polling place during the vote. Petitioner requests a revote on the referendum. Respondent contends its failure to post the list of absentee voters in a timely manner was a minor irregularity that did not affect the outcome of the vote.

The results of a school district vote will not be set aside in the absence of evidence of the probability 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 Crawmer, 35 Ed Dept Rep 206; Appeal of Donnelly, 33 id. 362); are so pervasive in nature as to vitiate the electoral process (Matter of Gilbert, 20 Ed Dept Rep 174); or that the irregularities demonstrated a clear and convincing picture of informality to the point of laxity with respect 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 Ed., Glen Cove City School District, 112 AD2d 640, 492 NYS2d 157). To warrant setting aside an election, the improprieties alleged must be substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46). In a vote on a capital project and the financing thereof, the proof must contain affidavits or statements from individuals who voted in favor of the proposition that their vote would have been otherwise but for the alleged misconduct (Appeal of Bach, 32 Ed Dept Rep 273; Appeal of Hable, 30 id. 73).

In this case, respondent failed to post a list of absentee voters, as required by Education Law '2018-a(6)(b). However, the purpose of the posting of the list of absentee voters is so that any qualified voter may challenge the acceptance of an absentee voter's ballot. Petitioner does not challenge any of the absentee voters' ballots. As respondent notes, the referendum passed by a margin of 694 votes. Even if petitioner had challenged all of the absentee votes, the result of the vote would remain unchanged. Furthermore, respondent acknowledges its obligation to post the list of absentee ballots and states that it will do so in the future. Based on the record before me, I find no basis to overturn the district vote on the bond issue and order a revote.

THE APPEAL IS DISMISSED.

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