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Decision No. 13,909

Appeal of HENRY F. HENNESSEY from action of the Board of Education of the William Floyd Union Free School District and Anthony Liberti regarding the conduct of a school district election.

Decision No. 13,909

(April 3, 1998)

Tinari, Paar, Matthews, O'Connell & Osborn, LLP, attorneys for petitioner, Patrick M. O'Connell, Esq., of counsel

Ehrlich, Frazer & Feldman, attorneys for respondent Board of Education, Florence T. Frazer, Esq., of counsel

Kevin A. Seaman, Esq., attorney for respondent Liberti

MILLS, Commissioner.--Petitioner challenges the results of an election in which Anthony Liberti ("respondent Liberti") was elected to the Board of Education of the William Floyd Union Free School District ("respondent board"). The appeal must be dismissed.

At the annual election held on May 21, 1996, petitioner and respondent Liberti were opposing candidates for a seat on the board of education. Petitioner, the incumbent, received 1,269 votes and respondent Liberti received 1,307 votes. Respondent Liberti was declared the winner, by a margin of 38 votes. This appeal ensued.

Petitioner alleges that several irregularities occurred during the conduct of the election that warrant overturning the results of the vote. Specifically, petitioner alleges that certain qualified voters were not permitted to cast ballots at the election and that respondent's superintendent of schools engaged in improper electioneering prior to the vote. Petitioner contends that, as a result of the irregularities, the outcome of the election was affected and must be overturned. Respondent board alleges that this appeal was not properly served and, therefore, must be dismissed on procedural grounds. With respect to the merits, respondents allege the conduct of the election was in all respects proper and that no improper electioneering occurred. Moreover, respondents contend that even if irregularities did occur, petitioner has not established that such irregularities affected the outcome of the vote and, therefore, there is no basis to overturn the election.

I will first address respondent board's procedural claim. Respondent alleges that petitioner failed to effect proper service of the petition and supporting papers. Petitioner's affidavit of service indicates that petitioner served respondent by service upon its district clerk at 11:00 p.m. at her residence. Section 275.8(a) of the Commissioner's regulations provides, in pertinent part:

A copy of the petition, together with all of petitioner's affidavits, exhibits, and other supporting papers… shall be personally served upon each named respondent… between six o'clock in the morning and nine o'clock in the evening… If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk…

That provision requires that service be effected within the hours specified in the regulation (Appeal of Pavacic, 32 Ed Dept Rep 135; Appeal of the Board of Education of the City School District of the City of New York, 25 id. 359). Petitioner does not contest that service upon the board of education occurred at 11:00 p.m., outside the specified time period. Nor does petitioner offer any basis on which to excuse the failure to properly serve the petition upon respondent board. Therefore, because petitioner failed to effect proper service upon respondent board of education, the appeal must be dismissed.

The appeal must also be dismissed on the merits. To overturn an election, petitioner must prove improper conduct on the part of 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). Petitioner must also 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 contends that certain qualified voters were not permitted to cast ballots at the election. In support of that claim petitioner attaches seven affidavits by individuals alleging that each was a qualified voter at the time of the election but was not permitted to vote therein.

Pursuant to Education Law "2012, to qualify to vote in a school district election, an individual must be a citizen of the United States, at least 18 years of age, and a resident of the school district for a period of 30 days next preceding the election. Education Law "2014 authorizes boards of education to adopt a system of personal registration. Where a system of personal registration has been adopted in accordance with Education Law "2014, an individual who is not registered is ineligible to vote in a school district election, even if such individual meets the qualifications noted in Education Law "2012 (Appeal of Dreyer, 18 Ed Dept Rep 235).

Individuals may register to vote either by personally appearing before the school district's board of registration in accordance with Education Law "2014(2), or by registering with the county board of elections. Therefore, any district resident who is registered to vote with the county board of elections is entitled to vote at all school district meetings and elections even if the individual's name is not otherwise listed on the school district register (Appeal of Greening, 35 Ed Dept Rep 122; Appeal of Prosky, 34 id. 202). Education Law "2019-a provides that, where a voter presents himself to vote and his name cannot be found on the registration list, the voter may only be allowed to cast a ballot either by obtaining a court order directing that he be allowed to vote or, alternatively, the voter may request, swear to and subscribe an affidavit stating that the voter has duly registered and remains a qualified voter in the district.

The record indicates that, pursuant to Education Law "2014, respondent board had adopted a system of personal registration for use at its elections. A copy of the school district's register was available at the polls at the May 21 election, as required by Education Law "2015(5). In addition, on May 10, 1996, the Suffolk County Board of Elections forwarded a list of all registered voters residing within the William Floyd Union Free School District. On the day of the election, the lists from the Suffolk County Board of Elections ("county lists") were kept in Room 123 which was adjacent to the polling place. Moreover, to enable district election inspectors to check the registration status of more recent registrants with the county, workers at the county board of elections were available by telephone until the polls closed at 10:00 p.m.

During the election, any individual whose name did not appear in the district's personal registration books was asked to report to Room 123 so that the county lists could be examined. There, an election inspector attempted to locate the voter's name in the county lists. If the individual's name was found, the individual was permitted to vote. Where a name could not be found in the county lists by an election inspector or clerk, but the individual indicated to the election inspector that he/she was a qualified voter and properly registered with the county, the election inspector telephoned the county board of elections to confirm the individual's registration status. If the county board of elections worker confirmed an individual's registration, the individual was permitted to vote; if not, the individual was not permitted to vote.

In support of his claim that qualified voters were denied an opportunity to vote in the May 21 election, petitioner submits with his petition seven affidavits by individuals who claim they were qualified voters at the time of the election, but were improperly denied an opportunity to vote. The record indicates, however, that four of the individuals were not registered with the school district or the county board of elections at the time of the election. A fifth individual, Katie Osorio, left the polling place immediately after being informed that her name did not appear on the district’s personal registration list, instead of proceeding to Room 123 where her county registration could have been checked. Only one individual appears to have been registered with the county at the time of the election but was erroneously not permitted to vote at the election. The last individual, Mark Vagemut, did not appear on the county list. An entry of "Mark Van Gemert" was listed on the county list, but it is unclear whether that is the same individual whose affidavit is submitted by petitioner.

Petitioner claims that, when the names of the seven individuals were not found on the registration list, respondent board failed to provide an opportunity for each to subscribe an affidavit pursuant to Education Law "2019-a which would have permitted the voter to cast a ballot. In its answer, respondent board contends that, because of the accessibility of the county registration lists throughout the entire election, the need for affidavits pursuant to Education Law "2019-a was obviated. Respondent is incorrect. Notwithstanding the exemplary procedures employed by respondent board at the election, upon the request of any individual whose name is not found on the registration list, Education Law "2019-a requires that an opportunity to subscribe an affidavit and cast a ballot pursuant to that statute must be provided.

However, upon review of the affidavits submitted by the seven individuals denied an opportunity to vote in the May 21, 1996 election, I note that none of them requested an opportunity to subscribe an affidavit pursuant to Education Law "2019-a. In addition, the record indicates that the names of only two of those individuals, in fact, appeared on the county board of election list and would have been eligible to vote at the election. Moreover, even if all seven individuals were improperly denied an opportunity to vote in the election, such would not warrant overturning the results of the election. The record indicates that respondent Liberti prevailed by 38 votes. Since petitioner submits affidavits from only seven voters, even assuming they were improperly denied an opportunity to vote, the outcome of the election would not have differed had each been permitted to vote. Although petitioner has not established a basis for overturning the results of the election with respect to respondent board's registration procedures, respondent board is admonished to fully comply with the provisions of Education Law "2019-a in future elections.

Petitioner also claims that a memorandum issued by respondent board's superintendent of schools improperly endorsed an incumbent board member and respondent Liberti as candidates for election, contained negative implications regarding petitioner and, therefore, constituted an unlawful use of district funds in violation of the Court of Appeals decision in Phillips v. Maurer, 67 NY2d 672. In Phillips the Court held that district funds may not be used to exhort the electorate to support a particular candidate or position in a school district election. However, a school district may disseminate purely factual information (Phillips v. Maurer, supra; Appeal of Loriz, 35 Ed Dept Rep 231).

In the instant matter, the record indicates that the superintendent's memorandum was an attempt by the superintendent to quell rumors circulating among certain staff members, that a number of employees were likely to lose their jobs. Specifically, the superintendent had been advised that custodial staff were concerned about a rumor that two candidates for the board of education, incumbent Jeananne Dawson and Anthony Liberti, intended to eliminate the district's maintenance department, consisting of about 75 custodial, maintenance and grounds workers. In an attempt to reassure staff, the superintendent issued a memorandum only to the district's custodial staff. The memorandum stated, in pertinent part,

The latest rumor which has come to my attention is that one of our Board members running for re-election, Jeananne Dawson, and her running mate, Tony Liberti, intend to eliminate the maintenance department. This is your plain old garden variety B.S.! The fact is that Jeananne has voted yes on every contract, every leave and everything else associated with custodial maintenance and grounds employees. This budget contains funds for more custodial personnel, not less! This budget furthers our goal of placing 'kids first' and advancing our educational standards.

Everyone is entitled to and should vote for whoever they want. Hopefully, you will make a decision on who to vote for based on facts, not on half-truths and rumors. I had hoped that we were past this type of negativity. Apparently, we are not.

A review of the memorandum shows that after identifying the rumor, the superintendent addressed the factual voting record of incumbent Jeananne Dawson regarding maintenance and custodial issues and made no further mention of any other candidate, including respondent Liberti. Nothing in the memorandum was stated in support of respondent Liberti, who was opposing petitioner, nor was any mention made of any of the six other candidates, including petitioner. Moreover, the memorandum clearly states, "[e]veryone is entitled to and should vote for whoever they want."

Thus, the superintendent's memorandum fell far short of an endorsement of respondent Liberti or candidate Dawson. Rather, it was merely a memorandum intended to set the record straight on an issue directed only to those employees affected by the rumor. Accordingly, the superintendent's memorandum did not violate the proscription against the use of district funds to support a particular candidate. Moreover, petitioner offers no evidence indicating that respondent board authorized or was even aware of the memorandum disseminated by its superintendent.

Even assuming that the memorandum was somehow improper, there has been no showing that the superintendent's memorandum had any effect on the outcome of the election. Petitioner's assertions regarding the impact of the superintendent's memorandum are based on the affidavit of one Albert Rebentisch. Rebentisch alleges that district employees in the maintenance department told him that they were either "upset" or "nervous" or "felt threatened" if they did not vote for "the people named in the memo, namely Jeananne Dawson and Tony Liberti." However, petitioner has failed to offer a single affidavit of any voter asserting that he or she would have voted differently but for the information in the superintendent's memorandum. Petitioner also failed to offer the affidavit of any district employee who declined to vote because he or she was afraid of retaliation based on the memorandum. Petitioner's allegations are merely speculative and conclusory and are not the kind of statements which warrant overturning the election (Appeal of Donnelly, 33 Ed Dept Rep 362).

Based on the record before me, petitioner has failed to establish that an irregularity occurred in relation to the May 21, 1996 annual election which affected the outcome of the vote. Consequently, there is no basis on which to overturn the results of the election.