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Decision No. 14,048

Appeal of KENNETH HELLER from action of the Board of Education of the Port Chester-Rye Union Free School District regarding conduct of a school district election.

Decision No. 14,048

(December 15, 1998)

Mann and Mann, attorneys for petitioner, Monroe Yale Mann, Esq., of counsel

Sisca and Sisca, P.C., attorneys for respondent, Francis J. Sisca, Esq., of counsel

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for election to the Board of Education of the Port Chester-Rye Union Free School District ("respondent"), challenges the results of a school board election held on May 28, 1997. The appeal must be dismissed.

On May 28, 1997, respondent held an election to fill two at-large seats. There were four candidates for the two seats. Brian Brady and James Dreves received 1,368 and 1,009 votes, respectively, and were declared the winners of the election. Petitioner received 999 votes and the fourth candidate received 266 votes. This appeal ensued.

Petitioner claims "upon information and belief" that "[m]achine number 3 or 4" malfunctioned and did not properly record the votes cast. Petitioner additionally contends that he was "further informed" that there was a problem with a lever on machine #1, but the machine remained in service. Petitioner claims that, under these circumstances, the voting machines did not tally the votes correctly. Petitioner lost the election to Mr. Dreves by just 5 votes on the voting machines and 5 absentee ballot votes. In view of this slim margin, petitioner seeks to overturn the May 1997 election results as to Mr. Dreves. Petitioner, however, does not challenge the election of the other successful candidate who won by several hundred votes. Petitioner also requests a recount of the election votes.

Respondent maintains that petitioner fails to establish that the voting machines malfunctioned, that votes were not recorded or that the alleged irregularities with the voting machines affected the outcome of the election. Respondent also maintains that the petition must be dismissed for failure to name the board of education and Mr. Dreves as necessary party respondents.

In support of its answer, respondent submits affidavits by six persons with personal knowledge of the operation of the voting machines, to show that no malfunctions affected the election results. Respondent explains that, in addition to casting votes for two of the four board candidates, voters also voted on two propositions. On the morning of the election a voter, who was also the designated poll watcher for candidate Dreves, reported a problem with the lever on machine #4 that recorded votes for proposition #1. Voting machine technicians promptly examined machine #4, and discovered that the "YES" lever for proposition #1 appeared to return toward the up position when the lever was pulled down. The technicians further ascertained that the voting levers for the other proposition and the four board candidates were working properly with no malfunctions or operating difficulties. Nevertheless, Machine #4 was removed from service, locked and sealed, and a replacement machine was installed.

Respondent's affidavits also indicate that election officials received a complaint that machine #1 did not make a clicking sound when the levers were pulled. A voting machine technician states in his affidavit that many voting machines do not make a clicking sound, but machine #1 was inspected anyway and found to be operating perfectly. No other voting machine irregularities or malfunctions were reported or found, no complaints about the voting machines were voiced by any candidate including petitioner, and no claim was raised at the time of the election that votes were lost because of any irregularity.

In his reply, petitioner questions the manner in which the technicians checked the candidates' levers on machine #4, and alleges that the technicians tampered with the votes by using the levers and perhaps casting multiple votes for candidates they preferred.

As a threshold matter, the appeal must be dismissed for failure to join James Dreves as a respondent. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Schuler, 37 Ed Dept Rep 512; Appeal of Garard, 36 id. 15). If an appeal involves the validity of an election, each successful candidate whose right to hold office is disputed must be joined as a respondent (8 NYCRR "275.8[d]; Appeal of Gravink, 37 Ed Dept Rep 393).

Petitioner specifically seeks to unseat Mr. Dreves, and Mr. Dreves' rights would clearly be affected if the petition were granted. Section 275.8(d) of the Commissioner's regulations requires that "a copy of the petition must be served upon ... each person whose right to hold office is disputed and such person must be joined as a respondent" (emphasis added). Thus, even though a copy of the petition and supporting papers were served personally upon Mr. Dreves, mere service of a copy of the petition does not accomplish the second requirement of 8 NYCRR "275.8(d), i.e., joinder of the individual as a respondent (8 NYCRR "275.8[d]; Appeal of Chechek, 37 Ed Dept Rep 624; Appeal of Hochhauser, et al., 34 id. 580, citing City of Mount Vernon v. Best Development Co., 268 NY 327; Application to Reopen Appeal of Reese, et al., 34 Ed Dept Rep 447). The individual must also clearly be named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Hochhauser, supra; Application to Reopen Appeal of Reese, et al., supra). It is the notice of petition which alerts a party to the fact that he or she is required to appear in the appeal and to answer the allegations contained in the petition (8 NYCRR ""275.11, 275.13; Application of the Board of Education of the Ardsley Union Free School District, 38 Ed Dept Rep 221; Appeal of Osterman, 30 id. 290). To the extent that any previous decisions by the Commissioner in appeals filed pursuant to "310 of the Education Law may be interpreted as contrary to the above-stated requirements for joinder, those decisions are expressly overruled.

In the instant appeal, Mr. Dreves was not named as a respondent in the caption of the petition or in the notice of petition such that he would have been on notice that he was intended to be a party to the appeal and was required to submit an answer. The appeal must, therefore, be dismissed for failure to join a necessary party (Appeal of Schuler, supra).

Even if the appeal were not dismissed on procedural grounds, the appeal would be dismissed on the merits. To overturn an election, petitioner must prove improper conduct on the part of the respondent such as a violation of the Education Law or Commissioner’s regulations (Appeal of Chechek, supra; seeAppeal 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, 32 AD2d 990, aff’d, 26 NY2d 709; Davis v. Commissioner of Education, 189 AD2d 1046; Appeal of Chechek, supra; 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 172, aff’d sub nomCapobianco v. Ambach, 112 AD2d 640, 492 NYS2d 157[3d Dept 1985]). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of an 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 failed to meet his burden of proof. The petition merely repeats rumors that the voting machines malfunctioned and did not properly record the votes cast. Similarly, in his reply, petitioner speculates without any factual proof that voting machine technicians tampered with votes on one machine during the course of testing its levers and cast multiple votes for candidates they preferred. In contrast, respondent presented affidavits by actual witnesses and participants in the operation and inspection of the machines. These affidavits indicate that although voting machine #4 presented a difficulty, it was only with respect to the "YES" lever for proposition #1. Further, these affidavits indicate that two qualified voting machine technicians examined the machine and found that it was not malfunctioning and did not actually fail to record votes. Nonetheless, they took the machine out of service and sealed it as precautionary measure. The other levers on voting machine #4 were found to be working properly, including the levers for voting on the four board candidates, and no other voting machine was found to be malfunctioning. Finally, there is no evidence in the record before me of improper tampering or multiple illegal votes by the voting machine technicians.

It is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Chechek, supra; Appeal of Kushner, 36 Ed Dept Rep 261; Appeal of Young, 26 id. 272). Petitioner's allegations are insufficient to establish that there were voting irregularities that affected the outcome of the election. Accordingly, there is simply no factual basis upon which to order a recount or a new election.

In view of the foregoing disposition, I will not address the other procedural issues raised by respondent.