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Decision No. 13,930

Appeal of NICHOLAS P. GIULIANO from action of the Board of Education of the Harborfields Central School District and James T. Brennan regarding election irregularities.

Decision No. 13,930

(May 4, 1998)

Ingerman Smith, L.L.P, attorneys for respondents, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner, an unsuccessful candidate in the May 20, 1997 election for the Board of Education of the Harborfields Central School District ("respondent board"), challenges the results of that election because of alleged election irregularities. He asks that I annul the outcome of the budget and school board vote on that date and order a new vote. The appeal must be dismissed.

On May 20, 1997, respondent board conducted an election at which it placed two items before the public for a vote, the approval of the annual budget and the election of candidates for the board of education. The budget passed by a margin of 1162 votes in favor to 438 votes against. Respondent Brennan defeated petitioner by a vote of 870 to 520.

Petitioner contends that respondent board used public funds and property for political purposes, engaged in improper electioneerings, violated the neutrality of the polling place and violated petitioner's right to free speech and a fair election. Petitioner contends that a budget brochure prepared and distributed by respondent board urged voters to vote for the budget, presented a biased account of the budget and improperly concealed the cost of professional/staff contract raises. Petitioner also alleges that respondent's superintendent used a kindergarten orientation to campaign for the budget. Petitioner further argues respondent board improperly allowed the local PTA to hold its meeting in the same school building as the polling place during the election.

Respondent contends that petitioner has failed to state a claim upon which relief can be granted and to provide any evidence to support his claim. Respondent asserts that its budget brochure did not advocate a "yes" vote, that the brochure appropriately displayed the professional/staff salaries, and denies that it engaged in electioneering.

Analysis of election irregularities requires a two-part inquiry. Both prongs of this analysis must be satisfied for the Commissioner to disturb the outcome of an election (Appeal of Goldman, 35 Ed Dept Rep 126). First, petitioner must prove improper conduct on the part of the 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). Second, petitioner must establish 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 and Bd. of Ed., Glen Cove City School District, 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 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 has not met that burden in this appeal.

Petitioner argues that respondent's budget brochure is misleading because it does not adequately disclose the impact on the budget of salary increases due to multi-year professional/staff contracts. Petitioner further contends that respondent misled voters by not providing more complete information on its question-and-answer page. I do not find respondent board's actions to be misleading. The record indicates that the actual expenditure for salaries is clearly displayed in the brochure next to the expenditure for the previous year. In any case, petitioner does not submit any affidavits, statements or other evidence to show that the brochure misled any voter or that any voter would have voted differently but for the brochure.

Petitioner also argues that respondent violated polling place neutrality by allowing the PTA, which had campaigned for passage of the budget, to hold its meeting in the same school building as the polling place during the election, so that its members could vote more easily. Respondent states that the PTA merely held its regular meeting in the library, an area not proximate to the voting, and they did not engage in any political activity. Petitioner does not cite any authority in support of his argument regarding the neutrality of the polling place. Previous decisions of the Commissioner have recognized that the mere presence of partisan individuals or groups on school grounds during a school election is not in and of itself improper provided that no electioneering takes place (Appeal of Fitzpatrick, 30 Ed Dept Rep 124; Appeal of Heidbrink, 29 id. 192; Appeal of Gasparini, 23 id. 25). Education Law "2031-a prohibits electioneering within 100 feet from where an election is held. Petitioner has not submitted any evidence to show that the PTA members displayed posters, buttons, or flyers or in any way attempted to influence votes during the election. Moreover, there is no evidence that the district encouraged the PTA to hold its meeting that day or varied from its usual procedure regarding the use of school facilities. I do not find the mere presence of the PTA in another part of the school building to constitute prohibited electioneering.

Similarly, I do not find the superintendent's presence at the polls to be electioneering. Respondent contends that the superintendent only appeared periodically to ensure that students conducting an exit poll were at their posts at the assigned times. Petitioner does not submit any evidence to show that the superintendent attempted to influence votes while at the polling area. Petitioner does submit with his reply, the affidavit of an individual stating that the superintendent campaigned for passage of the budget at a kindergarten orientation held prior to the election. However, petitioner does not submit any evidence to show that anyone voted for the budget as a result of the superintendent's alleged actions. Notwithstanding this lack of evidence, I caution respondent board to avoid even the appearance of impropriety in the conduct of future elections.

Based on the foregoing, I find no basis to overturn the election.