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Decision No. 13,920

Appeal of HENRY J. BARTOSIK from action of the Board of Education of the Ellenville Central School District regarding election irregularities.

Decision No. 13,920

(April 15, 1998)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, James P. Drohan, Esq., of counsel

MILLS, Commissioner.--Petitioner, a resident of the Ellenville Central School District ("the district"), challenges actions of the district's board of education ("respondent") related to its May 21, 1997 budget vote and school board election. The appeal must be dismissed.

Petitioner's claims are two-fold. First petitioner contends that respondent used district funds and facilities for the advancement of certain school board candidates and of the district budget. Specifically, on May 16, 1997, announcements containing the names and supporting information for three of the six school board candidates appeared on the community access channel, which is jointly run by the district and Time Warner. Also, petitioner alleges that a televised announcement related to the budget vote contained "leading" commentary.

Second, petitioner challenges the manner in which a vacancy on the board was filled. A board member died early in 1997 and his seat was not filled. On April 2, 1997, a legal announcement was published concerning the district's May 21, 1997 budget vote and election, that listed four vacancies and their terms, including the remaining term of the deceased board member. A second board member died on May 4, 1997, and the board decided to fill the additional vacancy at the May 21, 1997 election. Petitioner contends that this action limited the field of candidates. He argues that respondent should have either opened the opportunity to petition to the community, selected a replacement, or left the vacancy open until the next school year.

Petitioner commenced this appeal and asked that I stay the May 21, 1997 budget vote, proposition vote, and election of trustees, direct a new date for the vote, and open the period for the submission of additional petitions for board candidates. Alternatively, petitioner asks that I void the results and establish a date for a re-vote. Finally, petitioner asks me to direct the district to omit commentary in budget vote announcements and to stop using school facilities, taxpayer funds and students for political purposes. Petitioner's request for interim relief pending a decision on the merits was denied on May 29, 1997.

Respondent denies any improprieties with respect to the use of the public access channel and contends that it stopped the announcements upon petitioner's complaint. Respondent also denies that filling the board vacancy via the election was improper. It argues that there were more than enough candidates to fill the additional vacancy and that since the seats were being filled at large, it could not be argued that any candidate was running for an identifiable seat. Finally, respondent argues that the appeal should be dismissed for failure to join necessary parties.

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 a petitioner is a necessary party and must be joined as such (Appeal of Karliner, 36 Ed Dept Rep 30; Appeal of Garard, 36 id. 15). Commissioner's regulation ' 275.8(d) specifically provides, in pertinent part:

If an appeal involves the validity of a school district meeting or election . . . a copy of the petition must be served upon the . . . board of education . . . and upon each person whose right to hold office is disputed and such person must be joined as a respondent.

In the challenged election, six candidates ran at large for five seats. Petitioner seeks a new election, which would adversely affect the five prevailing candidates. Therefore, they are necessary parties, and petitioner's failure to join them requires the dismissal of this appeal.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on its merits. First petitioner alleges that respondent improperly allowed a public access television station, operated by the district in conjunction with Time Warner, to broadcast information on school board candidates as well as "leading" commentary on the district budget vote. However, in the conduct of school district votes and elections, there is a presumption of regularity (Appeal of Kushner, 36 Ed Dept Rep 261; Appeal of Cochran, et al., 35 id. 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, 32 AD2d 990, aff'd, 26 NY2d 709; Appeal of Goldman, 35 Ed Dept Rep 126; Appeal of Roberts, 33 id. 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). 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 Goldman, supra; Appeal of Roberts, supra). Furthermore, petitioner has the burden of establishing the facts upon which they seek relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). Petitioner has not met his burden of proof in this case. He has failed to provide any evidence demonstrating that the broadcasts, even if improper, affected the outcome of the budget vote or election, that the alleged irregularities vitiated the voting process, or that there was sufficient laxity in adherence to the Education Law to warrant overturning the results. In fact, the budget and one of the two additional propositions were defeated.

Also petitioner alleges that respondent failed to follow district policy in filling the vacancy created by the death of a board member on May 4, 1997. The district policy states, in pertinent part:

In the event of death . . . of a Board member, the board may appoint a new member to fill such a vacancy. If the Board chooses to fill the vacancy, it shall be only for a term ending with the next annual election of the School District at which time such vacancy shall be filled in a regular manner for the balance of the unexpired term.

This is consistent with Education Law ' 1709(17), applicable to central school districts by virtue of Education Law ' 1804(1), which provides that a board of education shall have the power and duty:

To fill any vacancy which may occur in said board by reason of death . . . of any member or officer of said board; and the person so appointed in the place of any such member of the board shall hold his office until the next regular school district election.

Thus, with the vacancy occurring shortly before the election, there was nothing improper in the board filling the vacancy at the regular election (Appeal of Pendergast, 20 Ed Dept Rep 127). In Pendergast, after a board member resigned on June 4, 1980, the Board of Education of the Niagara-Wheatfield Central School District decided to fill the vacancy for the unexpired term at the next annual meeting on June 17, 1980. In that case, as here, there was no indication that anyone in addition to those running for the other vacancies would want to run for the additional seat.

I note that the published notice of April 2, 1997 -- listing four vacancies instead of five -- was, in retrospect, incorrect. However, a technical failure to give proper notice is not a basis for invalidating an election result where the notice given is reasonably calculated and effectively does give notice to the public of the election unless the omission was willful and fraudulent (Education Law ' 2010, Hurd v. Nyquist, 72 Misc. 2d 213; Appeal of Pendergast, supra). Obviously, since the vacancy did not exist at the time the notice was published, the omission was not willful or fraudulent, and I will not set aside the election for want of notice.