Decision No. 14,052

(December 21, 1998)

MILLS, Commissioner.--Petitioner challenges the results of a school district election held by the Board of Education of the Port Chester-Rye Union Free School District ("respondent board") on May 8, 1996. The appeal must be dismissed.

Petitioner was defeated by respondent Lupo in the May 8th election for a position on respondent board. After the polls closed, an inspection of the voting machines indicated that respondent Lupo had received 69 more votes than petitioner. After approximately 120 absentee ballots and 8 paper ballots were counted, respondent Lupo was declared the winner by 55 votes. This appeal ensued.

Before reaching the merits, I will address several procedural issues. Petitioner originally commenced this appeal by personal service of the notice of petition and petition on respondent board's district clerk. Thereafter, petitioner caused a copy of the petition to be served upon respondent Lupo's wife at his residence. Section 275.8(a) requires that an appeal to the Commissioner of Education be commenced by personal service of a copy of the petition upon each named respondent or, "if he cannot be found upon diligent search, by delivering and leaving the same at his residence with some person of suitable age and discretion." The affidavit of service of the petition upon respondent Lupo fails to allege that any prior attempts were made to serve respondent Lupo personally before service was effected upon his wife. Absent evidence of a diligent effort to effect service upon respondent Lupo, service upon his wife is improper (Appeal of Donnelly, 33 Ed Dept Rep 362). Failure to properly serve respondent Lupo, a necessary party to the appeal, is fatal to the appeal and warrants its dismissal.

In addition, by letter dated June 25, 1996, petitioner indicated that he wished to withdraw this appeal. Thereafter, petitioner submitted an affidavit in which he stated that he did not wish to seek an order setting aside the results of the election or preventing respondent Lupo from being seated as a member of the board of education. Instead, petitioner asked that I review and "correct" respondent board's procedures in conducting elections. By withdrawing his request to set aside the election results, petitioner, in essence seeks an advisory opinion. The Commissioner of Education does not issue advisory opinions in appeals brought pursuant to Education Law "310 (Appeal of Lambert, 37 Ed Dept Rep 599; Appeal of a Student with a Disability; 37 id. 307). Therefore, the appeal must be dismissed.

The record indicates that on January 29, 1997 – several months after submitting notice of withdrawal of his request to set aside the election – petitioner submitted an affidavit acknowledging his previous action withdrawing his request that the election be set aside, and asked that such request be revived. At that time, respondents had relied on petitioner's earlier representation, respondent Lupo had already been seated and had been carrying out his duties as member of respondent board for nearly seven months. In fact, based upon petitioner's withdrawal of his request that the election be set aside, I declined to entertain his initial request for a stay prohibiting respondent Lupo from being seated, because such request had been rendered moot by the withdrawal. Because of the significant reliance upon petitioner's earlier representation, he can not now be permitted to reinstitute that part of the appeal he has withdrawn.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Petitioner alleges certain irregularities occurred in the conduct of the May 8 election. Petitioner contends that respondent board violated various provisions of Education Law "2018-a regarding absentee ballots. Specifically, petitioner maintains that respondent board failed to post and make available a list of all persons to whom absentee ballots had been issued and that such failure prevented him from having an opportunity to challenge any disputed ballots.

Petitioner also challenges respondent board's actions at the time the absentee ballots were canvassed. He alleges that, along with his attorney and a pollwatcher, he was ordered to stand 20 feet from the tables at which absentee ballots were examined and counted. Petitioner contends that this prevented him from challenging the validity of any of the ballots, in violation of Education Law "2018-a.

It has been consistently held that the Commissioner of Education will not set aside the results of a school district election in the absence of evidence 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 Robnett and Morith, 37 Ed Dept Dept 679; Appeal of Cochran, 35 id. 555; Appeal of Crook, 35 id. 546). The votes canvassed from the voting machines tallied 1135 votes for respondent Lupo and 1066 for petitioner – a plurality for respondent Lupo of 69 votes. Therefore, even if all 120 absentee ballots and 8 paper ballots were discounted, respondent Lupo would still be the successful candidate. Moreover, with respect to the absentee ballot vote, respondent Lupo received 34 votes and petitioner received 50. The paper ballot vote resulted in 3 votes for respondent Lupo and 1 vote for petitioner. The total votes cast for respondent Lupo totaled 1172 and the petitioner received 1117 votes. Respondent Lupo won by 55 votes. Thus, even if all 37 of respondent Lupo's absentee ballot and paper votes were discredited, respondent Lupo would still win the election by 18 votes. There would be no change in the outcome of the election regardless of how the absentee ballots and paper ballots for respondent Lupo were counted. Therefore, even if the alleged irregularities occurred, they would not affect the outcome of the vote.

Finally, petitioner has not established that the alleged irregularities did occur. In an appeal to the Commissioner the petitioner has the burden of establishing the facts alleged and entitlement to the relief sought (8 NYCRR 275.10; Appeal of the Coalition for the Empowerment of People of African Ancestry, 36 Ed Dept Rep 425; Appeal of Mallard, 35 id. 229). Petitioner's two main contentions relate to the posting of the absentee voter list and the ability of voters to challenge the absentee ballots. Petitioner submits five affidavits alleging the absentee voter lists were not conspicuously posted in the polling place as required by Education Law "2018-a. However, respondent board submits ten affidavits from the district clerk, chairman of the annual meeting, chief election inspector, president of the board of education, a pollwatcher and five election inspectors attesting that the list was posted. Petitioner, therefore, has not carried his burden and failed to establish his claim.

Similarly, petitioner submits five affidavits alleging that voters were directed to remain 20 feet away from the tables at which the absentee ballots were canvassed and contending that, therefore, voters were prevented from challenging such ballots. The record contains five affidavits on behalf of respondent alleging that petitioner and others were directed to remain only 3 feet from the tables and contending that voters were able to adequately view the canvass of the ballots for purposes of asserting a challenge. Because the evidence is in equipoise, petitioner failed to carry his burden of proof.

For all the foregoing reasons, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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