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Decision No. 13,936

Appeal of VON C. MORRIS, LINDA M. SANCHEZ, MARYANNE S. TARTAGLIA, LORETTA J. HOTTINGER, GERRY J. TROLIO, JOSEPH A. CARVALHO and DONATO F. CIRCELLO, from action of the Board of Education of the City School District of the City of Mount Vernon, the City of Mount Vernon, Anthony Scarnati, Gerald M. Coleman, Carolyn V. Ben-Reuben, Frances W. Wynn, Lynn C. Frazier-McBride, and Rev. David Henry, relating to a school district election.

Decision No. 13,936

(May 8, 1998)

Guy T. Parisi, Esq., attorney for petitioners

Richard H. Klapper and Mark E. Coyne, Esqs., attorneys for respondents Coleman, Ben-Reuben, Wynn, Frazier-McBride and Henry

Olga C. Dias, Corporation Counsel, attorney for respondent City of Mount Vernon, Tammy L. Brown, Assistant Corporation Counsel, of counsel

D’Andrea & Goldstein, Esqs., attorneys for respondent board of education, Robert Goldstein, Esq., of counsel

MILLS, Commissioner.--Petitioners, who include five unsuccessful candidates for election to the Board of Education of the City School District of the City of Mount Vernon ("respondent board") challenge the results of a school board election held on May 6, 1997, and seek an order directing that a new election be held for the five contested seats. The appeal must be dismissed.

On May 6, 1997, respondent board held an election to fill five seats. Over 11,000 voters cast votes for the five vacancies, for a total of 56,128 votes. There are minor discrepancies in the record as to the exact number of votes received by the eleven candidates in the election, but it is undisputed that respondents Wynn, Frazier-McBride, Ben-Reuben, Henry and Coleman were certified by the board as the successful candidates on May 7, 1997. The parties also do not dispute that the lowest victorious candidate, respondent Coleman, received 508 votes more than the highest unsuccessful candidate, petitioner Tartaglia, and the victory margins between the other candidates increased accordingly.

Five of the six unsuccessful candidates, and two other resident taxpayers, commenced this appeal asserting that there were sufficient irregularities in the conduct of the election and vote to justify setting aside the results. Respondents include the board of education, the City of Mount Vernon ("respondent City") the five successful candidates elected to the board, and the sixth unsuccessful candidate.

Petitioners allege 14 separate categories of voting irregularities, such as alleged instances of voters voting twice, individuals on challenge lists being permitted to vote without making the affirmation required by Education Law " 2019, and six qualified voters being denied the right to vote. Respondents contend that petitioners have failed to state a claim by failing to demonstrate by competent evidence that any alleged irregularities affected the outcome of the election. Respondent board alleges that, because this election was hotly contested, the board was very circumspect in its voting procedures and that the voting irregularities alleged by petitioners never occurred. Respondent City of Mount Vernon also contends that the petition fails to state a claim against the City, because the City had no responsibility for conducting the election and merely loaned its voting machines to respondent board to use in the election. Respondents further claim that the petition is untimely, that petitioners Morris and Circello lack standing to bring this appeal, that petitioners Tartaglia and Carvalho are estopped from challenging the board’s conduct of the election because they were members of the board, that petitioners waived any objection to the qualification of the voters by failing to make timely challenges to each voter at or before the election, and that petitioners’ evidence submitted with the petition is unsupported hearsay and not competent. Respondent City further alleges that the board’s district clerk, Elia DeBenedictis, is a necessary party. Petitioners’ request for interim relief was denied on June 27, 1997.

I will first address respondents’ procedural arguments. Petitioners' only claim against the City of Mount Vernon is that the City supplied the voting machines used in the election. Respondent City asserts that the petition fails to state a claim, because the City did not have control or custody of the voting machines while respondent board used them for the election, citing Education Law "2035. The record supports the City’s contention that it had no responsibility for conducting the election, and petitioners agree that such responsibility fell to the board and the district clerk. Petitioners claim that there was a discrepancy between the number of votes registered on the voting machines and the number of voters listed on the sign-in sheets, and that the City is responsible for maintenance and accuracy of the machines. However, petitioners do not contend that any mechanical problem or malfunction of the voting machines caused the alleged discrepancy. The substance of their complaint is that the procedures used by respondent board to verify eligibility and sign voters in were flawed, not that the voting machines did not accurately record the votes. As the City did not conduct the election and was not responsible for the processing of voters at the polls, there is no claim stated and the petition is dismissed as against the City.

Respondent City also claims that two of the petitioners, Donato Circello and Von C. Morris, have not substantiated their claims of being resident taxpayer voters, and thus are not aggrieved parties and lack standing to bring this appeal. To maintain an appeal pursuant to Education Law "310, a party must be aggrieved in the sense of having suffered personal damage or impairment to his or her civil, personal or property rights (Appeal of Szymkowiak, 36 Ed Dept Rep 204; Appeal of Goloski, 34 id. 565; Appeal of Ulcena, 33 id. 328; Appeal of Allert, 32 id. 538). In the petition, petitioners Morris and Circello state that they are residents of Mount Vernon, taxpayers and voters in the May 1997 election, and listed their addresses. Respondent City produced copies of the deeds for both addresses, which do not list petitioners as the owners. Petitioners made no response to that specific factual issue raised by the City, but again stated in the reply that they were residents, taxpayers and voters in Mount Vernon. Residence within the city school district, not ownership, is one of the criteria for qualification to vote in an election (Education Law "2603[3]), and respondent City did not assert or provide evidence to show that petitioners did not in fact live at the specified addresses or were not qualified to vote in the election. In the absence of proof submitted by respondent that petitioners are not residents or qualified voters, petitioners’ statements in the petition, that they are qualified voters and residents, are sufficient to establish standing on this ground (Matter of Blostein v. Bauer, 218 AD2d 912 [3d Dept 1995]).

The individual respondents and respondent City further claim that the petition is untimely. An appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within thirty days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown. (8 NYCRR "275.16). Affidavits of service filed with my Office of Counsel indicate that the petition and exhibits, together with a notice which did not conform to the requirements of 8 NYCRR ""275.11 or 276.1(b), were initially personally served upon respondent Henry on June 3, respondents board, City, Ben-Reuben and Scarnati on June 4, and respondent Wynn on June 5, 1997. By letter dated June 5, 1997, petitioners’ counsel requested permission to serve respondents Wynn, Frazier-McBride and Coleman by mail, submitting affidavits indicating that several attempts at personal service had been unsuccessful. On June 6, 1997, my Office of Counsel granted permission to serve these respondents by mail, although personal service on respondent Wynn was in fact accomplished on June 5, 1997. Subsequently, an amended, proper notice and the underlying papers were personally served upon respondents City, board, Scarnati, Wynn, Ben-Reuben and Frazier-McBride on June 16, 1997, and by mail service by permission upon respondents Henry and Coleman on June 17, 1997. Although receipts stamped by the post office were submitted for both June 17 mailings, the signed certified mail return receipts were not filed with the Office of Counsel as directed.

The election took place on May 6, 1997, and the board certified the election results on May 7, 1997. At the very latest, the period for commencing this appeal expired on June 6, 30 days after the board’s certification of the election results on May 7, 1997. There is no indication of service upon Mr. Coleman prior to the June 17 mailing, nor is there any proof of service by mail on respondent Frazier-McBride prior to the personal service on June 16, 1997 However, under the totality of circumstances, including the affidavits submitted by petitioners indicating their several unsuccessful attempts to serve these respondents prior to expiration of the 30 days, and the lack of prejudice to respondents by the short delay involved, I find that there is good cause for the delay and will excuse any delay in service pursuant to 8 NYCRR "275.16.

The City and individual respondents also raise a procedural objection that petitioners have waived their right to contest the qualifications of individual voters by failing to make timely and appropriate challenges. Petitioners were required to challenge unqualified voters prior to or at the time such voters presented themselves at the polls to vote (Education Law ""2606[8] and 2609[5]). It has long been recognized that a person who has the right to challenge a voter and permits him to vote without challenge is not allowed to object subsequently to the election on the ground that the voter was unqualified (Appeal of Fraser-McBride, 36 Ed Dept Rep 488; Appeal of Horton, 35 id. 168; Matter of Katz, 18 id. 276; Appeal of Crary, 9 id. 96). Petitioners contend in their reply that representatives of the 11 candidates made approximately 1400 challenges prior to the election, and challenges were made regarding improper absentee ballot envelopes. However, petitioners fail to include any support for these conclusory statements and refer only to 154 named individuals on challenge lists (Exhibits 7-9 to petition). They do not submit copies of any challenge lists, the names of voters challenged or the results of such challenges, nor do petitioners present any evidence as to whether the remaining persons named in the exhibits to the petition were in fact the subject of any timely challenges. Failure to show that timely and appropriate challenges were made requires dismissal of the petition insofar as it challenges the qualifications of voters, except as to the individuals named in Exhibits 7-9 (Appeal of Fraser-McBride, supra).

I must also address the fact that respondent Scarnati was personally served twice with the petition, and did not submit an answer. Consequently, the factual allegations set forth in the petition are deemed to be true as to him (8 NYCRR "275.11). However, the record only reflects that Mr. Scarnati was the sixth unsuccessful candidate in the election. There is no indication that he was a member of the board, that he was involved in any alleged election irregularities, or that any relief is being sought as against him. The petition thus fails to state any clear and concise claim against Mr. Scarnati, and it is dismissed as to him (8 NYCRR ""275.10, 276.9).

I also find that the appeal must be dismissed on the merits. There is a presumption of regularity in the conduct of an election. The Commissioner of Education will not set aside the results of a school district election in the absence of evidence that the alleged irregularities 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 Fraser-McBride, supra; Appeal of Roberts, 33 Ed Dept Rep 601), are so pervasive that they vitiate 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 election provisions of 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 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, et al., 28 Ed Dept Rep 483). To warrant setting aside an election, petitioner must establish that the improprieties are substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46). Petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). Upon the record before me, I find that petitioners have failed to meet that burden.

The petitioners raised fourteen categories of alleged irregularities, to which respondents have replied in detail. I need not discuss the challenges and the controverting evidence in depth, because the record supports respondents’ claim that 88% of the voters contested by petitioners were in fact either duly qualified voters and properly permitted to vote, or were not qualified and thus properly not permitted to vote, and that the number of votes still at issue is insufficient to affect the outcome of the election.

Petitioners’ submissions consist primarily of typed lists of 957 names and addresses of voters who were allegedly improperly permitted to vote and 6 who were improperly denied the opportunity to vote. These lists contained no indication of the source of the names, who had compiled the lists, or, except for conclusory statements in Exhibits 7-9, whether the named voters had been challenged during or prior to the election. As to the allegation that someone had voted in the name of a deceased person, petitioners submitted only a typed list with the name of the alleged decedent, and no evidence such a copy of the buff card signed by the alleged voter or a death certificate. Petitioners alleged that two individuals’ buff cards were signed although the actual voters did not vote, but only one voter’s affidavit was submitted. As to Exhibit 13 of the petition, a typed list of 6 persons who were allegedly registered but not permitted to vote, petitioners submit no affidavits by the voters or other factual evidence to support the claim that the voters were duly qualified or to explain the circumstances of the alleged denial.

Similarly, petitioners made no assertion that the remainder of the 963 named persons were actually unqualified to vote irrespective of any violation of technical procedural requirements. Petitioners offered no certification that the individuals’ voter status had been ascertained through the Westchester County Board of Elections or any other factual support for the conclusory claims that such persons had illegally been permitted to vote.

The remainder of petitioners’ proof consists of affidavits by election inspectors that they witnessed a specified number of "incidents" in which proper procedures were not followed, with no specification of the names of involved voters, districts, times, name of involved election inspectors, circumstances of the alleged "incidents" or any allegation that the "incidents" resulted in unqualified voters voting. No evidence was provided at all concerning the conclusory claim that in thirteen districts there were variations between the number that appeared on the counter of the voting machines and the number of voters who signed in to vote, not even a specification of the extent of the alleged variations. Petitioners also submitted several newspaper articles about the election, but newspaper articles do not constitute proof of any of the facts stated therein (Appeal of Shravah, 36 Ed Dept Rep 396; Appeal of Como, 28 id. 483; Matter of Norden, 23 id. 94).

In contrast, the individual respondents submitted an affidavit by Carole Morris, a member of the Coalition for the Empowerment of People of African Ancestry and the campaign coordinator for the individual respondents, stating that she and others at her direction had reviewed every name listed in the petition’s exhibits and compared them with the voter lists prepared by the election inspectors and the voter registration records for the Westchester County Board of Elections. Exhibit B of Ms. Morris’s affidavit demonstrates myriad misspellings and incorrect addresses in the petitioners’ listings of the identified voters. Once the slight misspellings or address mistakes were corrected and the voter status checked, Ms. Morris concluded that at least 847 or 88% of the 963 voters identified by petitioners were treated at the polls in a manner consistent with their status as registered or unregistered voters. The district clerk, Elia DeBenedictis, acknowledged that the spreadsheets submitted by Ms. Morris showing the corrected spellings, addresses and registered status of the voters were accurate. Significantly, these assertions by respondents were not disputed or addressed in any way in petitioners’ reply. Although the reply responded to an affidavit submitted by Mr. DeBenedictis that outlined the procedures used by the board in conducting the election, there was no response at all to Ms. Morris’s affidavit and conclusions.

The record thus supports respondents’ claim that at least 847 or approximately 88% of the 963 named allegedly invalid voters were in fact determined to be qualified voters who were properly permitted to vote. That leaves only 116 voters identified by name in the petition whose registration status could not be determined, and at most 328 more who were not identified by name but whose number was obtained from the affidavits of election inspectors alleging to have witnessed 328 instances of inappropriate processing of allegedly unqualified voters, assuming that the inspectors’ alleged incidents did not involve persons already identified in petitioners’ lists of names. Not only would this total of 444 votes be insufficient to overturn any of the final election results, the petitioners also present no evidence whatsoever that any of those votes had actually been improperly cast for one of the successful candidates, or that any voter improperly turned away would have voted in favor of one of the petitioners. In sum, the petitioners fail to make a showing that the alleged irregularities affected the outcome of the election, were so pervasive that they vitiated the electoral process, or demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the election provisions of the Education Law, and the petition must be dismissed.

In light of the foregoing disposition, I will not address the parties' remaining contentions.

Although petitioners have not sustained their burden of showing that the election results should be overturned, I am greatly concerned that this is the second consecutive appeal by the unsuccessful candidates of a school board election in Mount Vernon. For future elections the board is encouraged to provide training for all election inspectors as to their responsibilities, which should specifically include procedures to be used if a voter is challenged. Challenges to voters’ qualifications should be made prior to the election and resolved by the election date, if possible. In addition, the candidates should avail themselves of the opportunity to have poll watchers stationed at each polling place to make timely challenges to voters and resolve these issues at the time of voting rather than in subsequent appeals to the Commissioner.