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Decision No. 14,091

Appeal of MARGARET ADAMS from action of the Board of Education of the Schuylerville Central School District regarding the conduct of an election.

Decision No. 14,091

(March 19, 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 the May 19, 1998 election held by the Board of Education of the Schuylerville Central School District ("respondent"). The appeal must be dismissed.

On May 19, 1998, respondent held an election: on the district's proposed 1998-1999 budget; on propositions concerning the library, the purchase of school buses and real property; and to fill two at-large seats on respondent board. The polls at the district’s elementary school opened at 12:00 noon. District Clerk Cathy Drew and Business Manager Joan Alheim were the first voters on the two voting machines used by the district. When they attempted to vote, they both experienced the same trouble with their respective machines: the machines permitted a vote for only one board candidate, instead of two. Both Ms. Drew and Ms. Alheim exited the voting machines without pulling the lever to register their votes and consulted with the election inspectors, who temporarily halted the voting. Thereupon, Ms. Drew attempted to contact the voting machine custodian, Mr. Ardeen DeMarco, Jr., who had set up the machines. When he was unavailable, Ms. Drew contacted Mr. DeMarco, Sr., also a voting machine custodian, who arrived at approximately 12:50 p.m. He repaired the machines and had them operating again by approximately 1:00 p.m., when voting recommenced.

Voting concluded at 9:00 p.m., after which the following results were recorded. The budget passed by a vote of 508 to 400. The school bus purchase proposition passed 528 to 380, and the library proposition passed 565 to 337. The real property purchase proposition was defeated 495 to 405. The voters elected Karen Score (559 votes) and Charles Kish (453 votes) to the board. The third candidate, Jack Bartoszek, received 314 votes.

Petitioner asserts that she was present on school property from approximately 12:10 to 12:20 p.m., during which time she estimates that at least 50 voters were turned away in line, in the lobby, and in the parking lot. She postulates that in the hour that the machines were shut down, over 100 voters must have been turned away. She contends that when she requested an alternate means of casting her vote by paper ballot, she was informed that there was no alternate means to vote available. Petitioner states that she was given two choices: to wait or to return later, neither of which was feasible because of her work schedule. Petitioner requests that I set aside the election results and order a new election.

Respondent contends that the appeal must be dismissed because petitioner fails to state a claim upon which relief may be granted and fails to join necessary parties.

As a threshold matter, the appeal must be dismissed for failure to join the two winning candidates, Karen Score and Charles Kish, as respondents. 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 Garard, 36 id. 15). When 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 seeks to set aside the election results. Thus, the rights of Ms. Score and Mr. Kish 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). In the instant appeal, neither Ms. Score nor Mr. Kish is named as a respondent in the caption of the petition or in the notice of petition, nor were they served with a copy of the petition. The appeal must, therefore, be dismissed for failure to join necessary parties (Appeal of Heller; supra; Appeal of Schuler, supra).

Even if the appeal were not dismissed on procedural grounds, it 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, 37 Ed Dept Rep 624). 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 she seeks relief (8 NYCRR " 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163).

Respondent admits that both voting machines simultaneously malfunctioned on May 19, 1998. However, respondent disputes petitioner’s claim that 50 to 100 voters were turned away. Respondent maintains that no more than thirty people were unable to vote during the approximately fifty minutes that the machines were inoperable. Respondent asserts further that approximately seven voters left the polling place, and only three, including petitioner, failed to return. Ms. Alheim attests that she did not turn anyone away in the parking lot, and that of the five or six people with whom she spoke outside, at least three chose to wait and vote.

Petitioner has offered no proof that any individual, other than herself, was unable to cast a vote. Moreover, she has not proven that any of the election results were affected by the machine malfunction. The unsuccessful board candidate received 139 votes less than Mr. Kish and 245 votes less than Ms. Score. The budget passed by 108 votes, the bus proposition by 148 votes, and the library proposition by 228 votes. The closest vote differential was the defeat of the real property proposition, which failed by 90 votes. Petitioner has failed to meet her burden of proving that at least 90 voters were unable to cast a vote, which would be the minimum necessary to prove that the machine malfunction affected the election results (Appeal of Robnett, et al., 37 Ed Dept Rep 679). Petitioner’s unsubstantiated allegations are insufficient to establish that there were voting irregularities that affected the outcome of the election. Accordingly, there is no basis upon which to order a new election.

In light of this disposition, I need not address the parties' remaining contentions.