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Decision No. 13,719

Appeal of ROBERT KUSHNER from action of the Board of Education of the East Williston Union Free School District regarding election irregularities.

Decision No. 13,719

(December 30, 1996)

Jaspan, Schlesinger, Silverman & Hoffman, LLP, attorneys for respondents, Lawrence Tenenbaum, Esq., of counsel

MILLS, Commissioner.--Petitioner, an unsuccessful candidate in May 1996 for a seat on the Board of Education of the East Williston Union Free School District, alleges certain election irregularities. The appeal must be dismissed.

At the East Williston Union Free School District's election held on May 21, 1996, petitioner was defeated in his bid for a seat on the board of education by incumbent Janet Entine by a margin of 84 votes. Petitioner alleges that certain irregularities occurred during the election. First, petitioner claims that 61 votes are questionable because 31 individuals who were not on the poll list signed voter cards, 16 individuals who were on the poll list did not sign voter cards, 5 individuals may have voted twice, and 9 individuals were first-time voters for whom there was no registration signature. In addition, petitioner alleges that 6 absentee ballots were cast without proper registration signatures and that it is not possible to determine whether the balance of the absentee ballots was properly authenticated by the district clerk. According to petitioner, if all of the absentee ballots were disqualified, Ms. Entine would lose 21 votes. Finally, petitioner suggests that the outcome of the election is questionable because one of the voting machines was repaired during the election. That machine reported 244 votes for petitioner and 312 votes for Entine, whereas the votes on the other machines were much closer, with petitioner receiving the majority of votes on one of the machines.

Petitioner requests a review by the Commissioner including impoundment of the election records, inspection of the voting machines, and a determination as to whether the results should be reversed or a new election called. Petitioner also requests the opportunity for further discovery because the district allegedly limited his access to election records.

Respondent maintains that the appeal should be dismissed on various procedural grounds and because petitioner has not rebutted the presumption of regularity in an election. Respondent also contends that the machine repair was due to a malfunctioning curtain mechanism and did not affect the election results.

As a preliminary matter, I will not consider the material belatedly added by petitioner in his reply which is not responsive to respondent's answer. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Appeal of Crawmer, 35 Ed Dept Rep 206; Appeal of Aarseth, 33 id. 522; Application of Verity, 31 id. 485).

Petitioner's assertion that he was unable to obtain evidence in support of his allegations because respondent limited his access to election records is, in essence, a claim under the Freedom of Information Law ("FOIL") (Public Officers Law '87, et seq.). The appropriate forum for addressing alleged FOIL violations, however, is the Supreme Court of the State of New York, not a '310 appeal to the Commissioner of Education (Appeal of Mitzner, 32 Ed Dept Rep 333; Appeal of Mitzner, 32 id. 101; Application of Eisner, 31 id. 517).

Petitioner's appeal must be dismissed on the merits because petitioner has failed to meet his burden of establishing that he is entitled to relief. Section 275.10 of the Commissioner's regulations requires a "petition [to] contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief." That is, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Marek, 35 Ed Dept Rep 314; Appeal of Nash, 35 id. 203; Appeal of Goldman, 35 id. 126) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Marek, supra; Appeal of Nash, supra; Appeal of DiMicelli, 28 Ed Dept Rep 327).

In the conduct of school district elections, there is a presumption of regularity (Appeal of Cochran, 35 Ed Dept Rep 555). A district election will not be overturned due to election irregularities unless petitioner establishes that the alleged 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), 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, 112 AD2d 640). The irregularities must be substantial and not merely technical (Appeal of Cochran, supra; Appeal of Walsh, 34 Ed Dept Rep 544; Appeal of Taylor, 31 id. 46). Implicit in these decisions is the 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, 28 Ed Dept Rep 483).

Here, petitioner raises a number of questions but has failed to meet his burden of proving that the alleged irregularities, if true, affected the outcome of the election. First, if the 61 votes which petitioner questions were to be cast in petitioner's favor and all of the absentee ballots were disqualified, the outcome of the election would not have been affected. Furthermore, with respect to petitioner's surmise that the votes recorded on one of the voting machines are invalid, petitioner bases his allegations on the facts that the machine's curtain cable was repaired during the election and that the results recorded in that machine were inconsistent with those of the other two machines. It is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Young, 26 Ed Dept Rep 272; Matter of Senecal, 22 id. 367; Matter of Carberry, 22 id. 295). In the absence of such proof, I will not set aside the election (Appeal of Ben-Reuben, 33 Ed Dept Rep 299; Appeal of Como, supra; Matter of Murtagh, 19 Ed Dept Rep 179).

Based upon the foregoing, I find no basis to overturn this election. I have considered petitioner's remaining claims and find them without merit.