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Decision No. 14,084

Appeal of THOMAS CHEFALO from action of the Board of Education of the Garrison Union Free School District regarding election irregularities.

Decision No. 14,084

(March 6, 1999)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, James E. Girvin and Kathy Ann Wolverton, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges the results of a school district election held by the Board of Education of the Garrison Union Free School District ("respondent") on May 19, 1998. The appeal must be dismissed.

On May 19, 1998 respondent held its annual meeting to permit the voters of the district to vote on the district's 1998-99 budget and to fill one seat on the board of education. Only one candidate, Dorothy E. Gilman, submitted a nominating petition to appear on the ballot. Another citizen, Stanley Freilich, waged a write-in campaign. Mr. Freilich was elected by 13 votes and the 1998-99 budget was approved.

Petitioner contends that respondent did not post distance markers prohibiting electioneering within 100 feet of the entrances to the polling place; that flyers for the write-in candidate were handed out at the entrance to school grounds; that a billboard for the write-in candidate was located on school grounds with respondent's permission; and that campaigning for the write-in candidate occurred at the voting place. Petitioner further contends that the voting machine stopped operating and that privacy was not provided to voters to write out their ballots. Although petitioner only appears to dispute Mr. Freilich's election to the board, he asks that I invalidate all of the election results.

Respondent contends that the petition should be dismissed for failure to state a claim upon which relief may be granted, join necessary parties, and comply with "275.10 of the Commissioner's regulations. Respondent maintains that the election was conducted properly, that 100-foot distance markers were in place, that voters had privacy, and that all campaigning took place beyond the 100-foot limit.

Initially I will address several procedural issues. Respondent argues that the petition fails to state a clear and concise claim upon which relief may be granted. Section 275.10 of the Commissioner's regulations requires a petition to contain a clear and concise statement of petitioner's claim showing that the petitioner is entitled to relief, and further contain a demand for relief. Such statement must be sufficiently clear to advise respondent of the nature of petitioner's claim and of the specific act or acts complained of. Petitioner's claims against respondent are apparent and respondent addressed those claims in its answer and memorandum of law. Where, as here, petitioner is not represented by counsel, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to respondent (Appeal of Loughlin, 35 Ed Dept Rep 432; Appeal of Roxbury Taxpayers Alliance, 34 id. 576; Appeal of Moessinger, 34 id. 246). Therefore, I decline to dismiss the appeal for failure to state a claim.

The petition, however, must be dismissed for failure to join a necessary party. It is apparent that petitioner contests Mr. Freilich's election and requests that I invalidate the vote. 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 Heller, 38 Ed Dept Rep 335; Appeal of Schuler, 37 id. 512; Appeal of Williams, et al., 36 id. 270). 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 Heller, supra; Appeal of Gravink, 37 Ed Dept Rep 393). In this case a decision in petitioner's favor would clearly affect the rights of the successful candidate, Mr. Freilich. Mr. Freilich is not named as a respondent in the caption of the petition and there is no evidence that he was served with a copy of the notice of petition and petition. Accordingly, the petition must be dismissed for failure to join a necessary party (Appeal of Heller, 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 Education Law or Commissioner's regulations (Appeal of Chechek, 37 Ed Dept Rep 624; Appeal of DiMicelli, 28 id. 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, et al., 32 AD2d 990, aff'd 26 NY2d 709; 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 Rep 172, aff'd sub nom; Capobianco v. Ambach et al., 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. The petition consists of one page of accusations without a single supporting affidavit or item of evidence. In contrast, respondent submits affidavits by the district clerk, interim superintendent and board president refuting petitioner's allegations and asserting that the conduct of the election was proper. Specifically, the district clerk states that the district posted five distance markers notifying people of the ban on electioneering within 100 feet of the polling place. She further states that she did not observe any electioneering within this limit or at the polling place. Finally, she explains that the voting machine ran out of paper at 4:00 p.m., whereupon voters were permitted to fill out paper ballots, one at a time, at a table. In sum, based on the record before me, there is no evidence that there were voting irregularities that affected the outcome of the election. Accordingly, there is no basis upon which to invalidate the election.