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Decision No. 13,877

Appeal of SALLY CARLSON, DOUGLAS HARPER, CAROL GRAZIANO, DANIEL GRAZIANO, MARCIE LARSON, MARY MORSE, WADE MORSE and RONALD NORGREN from action of the Board of Education of the Chautauqua Central School District and the Board of Education of the Mayville Central School District regarding a special election concerning a proposed merger of such districts.

Decision No. 13,877

(February 26, 1998)

Gleason, Dunn, Walsh & O'Shea, Esqs., attorneys for petitioners,

Brendan C. O'Shea, Esq., of counsel

Hodgson, Russ, Andrews, Woods & Goodyear, attorneys for

respondent Board of Education of the Chautauqua Central

School District, Karl W. Kristoff, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett and Reitz, Esqs., attorneys

for respondent Board of Education of the Mayville Central

School District, Norman H. Gross, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the results of a special election to merge the Chautauqua Central School District and the Mayville Central School District. The vote in question was held on February 14, 1996 pursuant to Education Law "1803-a. In an earlier vote held in 1995, the merger was approved by the voters in the Mayville Central School District, but was rejected by the voters of the Chautauqua Central School District. Upon expiration of the statutory period of one year, the referendum was again placed before the Chautauqua voters on February 14, 1996. The proposed merger was approved by 23 votes, and this appeal ensued. The appeal must be dismissed.

Petitioners claim that a number of irregularities occurred in connection with the February 14, 1996 election which, they contend, warrant my overturning the results. Specifically, petitioners allege that voters were not required to provide identification upon entering the polling place; that no registration system, voter lists or other means were used to ascertain voter eligibility; that voters were not required to print their name and address upon voting; and that insufficient procedures to challenge the eligibility of voters were in place. Petitioners further allege in their reply that the poll list consisted of illegible signatures and, therefore, was improper. As a result of these alleged improprieties, petitioners claim that individuals ineligible to vote cast ballots in the February 14 special election. Petitioners contend that, therefore, the vote must be nullified. Respondent contends that the vote was in all respects proper, and that petitioners have established no basis for overturning the results.

As a procedural matter, I note that petitioners' allegations regarding the legibility of signatures and completeness of information on the poll list appear only in their reply. Sections 275.3 and 275.14 of the Regulations of the Commissioner of Education set forth the scope of a reply in an appeal to the Commissioner and allow a response only to affirmative defenses and new material raised in an answer. The reply does not provide an opportunity to raise new grounds for relief (Appeal of Eastman Kodak Company, 32 Ed Dept Rep 575; Appeal of Alexandreena D., 30 id. 203; Appeal of Santicola, 29 id. 213) or to buttress allegations in the petition or add assertions which should have been included in the petition (Appeal of Eastman Kodak Company, supra; Appeal of Brousseau, 31 Ed Dept Rep 155; Appeal of Barbara P., et al., 30 id. 198; Appeal of Pronin, 27 id. 203). Although the poll list was available for inspection at the February 14 election, the petition contains no allegation regarding the legibility of the signatures or completeness of information on the list. Therefore, I will not consider those portions of the reply relating to the adequacy of the poll list.

The petition must also be dismissed on the merits. There is a presumption of regularity in the conduct of an election (Appeal of Ben-Reuben, et al., 33 Ed Dept Rep 299). The Commissioner of Education will not set aside the results of a school district vote 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 Brower, 29 Ed Dept Rep 145), are so pervasive in nature as to vitiate the electoral process (Appeal of Gilbert, 20 Ed Dept Rep 174), or that the irregularities demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the election provisions of the Education Law (Appeal of Levine, 24 Ed Dept Rep 172, aff'd sub nomCapobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 112 AD2d 640). Implicit in these decisions is a recognition that there are rare cases in which errors in the conduct of a school election have become so pervasive that the fundamental fairness of the election is vitiated (Appeal of Como, et al., 28 Ed Dept Rep 483). 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). Petitioners have the burden of establishing the facts upon which they seek relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). Petitioners have not met their burden of proof in this case.

Petitioners allege that voters were not required to produce identification prior to voting. However, there is no requirement in the Education Law that voters at a special election held pursuant to Education Law "1803-a produce identification to vote. Education Law "2018-c provides that a school district, as an alternative voting procedure, may require all persons offering to vote at any school district election to provide a specified proof of residency and may request such persons to provide their signature, printed name and address. Section 2018-c is, however, discretionary and does not apply to a vote held pursuant to Education Law "1803-a. Rather, Education Law "2018-c refers to elections conducted by a school district, not elections conducted by a board of canvass and board of elections pursuant to Education Law "1803-a.

Petitioners next contend that the vote must be overturned because no registration list, voters' list or other means of ascertaining voter eligibility was available at the polling place. However, there is nothing in the Education Law which requires the availability of such lists at the polling place for a vote held pursuant to Education Law "1803-a (see, Appeal of Walsh, 34 Ed Dept Rep 544). A voters' list would have been available only if a system of personal registration was in effect at the time of the election. Personal registration may only be instituted pursuant to Education Law "2014. That section provides that a board of education "may upon its own motion provide for the personal registration of voters at school meetings or elections in such district...." Since at the time of the vote the Chautauqua-Mayville Central School District, as laid out pursuant to Education Law "1801, had no constituted board of education to adopt personal registration for the special election, there could be no voters' list.

Petitioners also contend that the Board of Canvass which oversaw the conduct of the election and also constituted the Board of Elections improperly failed to encourage challenges to voters during the vote and did not participate actively in challenging such voters. Petitioners make similar allegations against the Chautauqua superintendent of schools, assistant superintendent and staff from the State Education Department's Office of School District Organization. Petitioners cite no legal basis requiring such action by the Board of Canvass or the named individuals. Indeed, none exists. While any resident of the Chautauqua Central School District, including those sitting on the Board of Canvass, could challenge the eligibility of any individual attempting to vote at the special election, there is no requirement in the law or regulation that any school official or member of the Board of Canvass encourage such challenges or actively participate in making such challenges. In any event, the record indicates that at a training session for the Board of Canvass held prior to the vote, the challenge process was discussed in detail and it was made clear that any qualified voter in the Chautauqua Central School District could challenge an individual's right to vote.

Petitioners also allege generally that more than 40 ineligible individuals were permitted to vote. Where, as here, there is no system of voter registration in place, an unqualified voter must be challenged pursuant to Education Law "2019. If challenged, the prospective voter must make a declaration, as specified in "2019, and will then be allowed to vote. The record shows that only three persons were so challenged. Each signed the required declaration and was allowed to vote. With regard to the remaining allegedly ineligible voters who were not challenged, when no timely challenge is made, the voter's qualifications may not later be challenged on appeal (Appeal of Walsh, supra; Appeal of Fugle, 32 Ed Dept Rep 480; Appeal of Gibeau, 30 id. 279; Appeal of Tortorello and Bartnik, 29 id. 306; Matter of Regent, 12 id. 108). I note that petitioners attach to their petition affidavits purporting to challenge 26 individuals in this appeal, alleging that they were ineligible to vote in the February 14 election. Petitioners contend that because the margin of approval was 23 votes, the results, therefore, must be annulled. However, even if such challenges were permissible at this time, respondent supplies affidavits which effectively rebut petitioners' allegations as to 12 of those individuals, leaving 14 individuals remaining. Even if all 14 were ineligible to vote, petitioners have failed to establish that the results of the election would be affected, since the proposed merger passed by 23 votes in the Chautauqua district (see, Appeal of Walsh, supra).

Finally, petitioners contend that the February 14, 1996 special election must be overturned on the basis that provisions of the New York State Education Law governing school district mergers are unconstitutional. The constitutionality of a statute will not be decided in proceedings brought pursuant to Education Law "310 (see, Matter of St. Cyr, 27 Ed Dept Rep 351; Matter of VanDruff, 21 id. 635). Moreover, an appeal is not the forum for litigating novel issues of constitutional law, particularly when they have not previously been subject to judicial review (Appeal of O'Shea, 32 Ed Dept Rep 514; Appeal of DeGroff, 31 id. 332).

For the reasons set forth above, petitioners have failed to establish that any irregularities occurred in the conduct of the February 14, 1996 special election held pursuant to Education Law "1803-a or that, even if irregularities had occurred, the result of the election would have been different. Consequently, there is no basis on which to overturn the results of the vote. Moreover, Education Law "1803-a(5) provides, "upon an appeal to the Commissioner of Education, substantial compliance with the procedures herein required shall be sufficient to meet the intent of this section." The record before me indicates that the February 14, 1996 special election was conducted in compliance with the provision of Education Law "1803-a.