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Decision No. 14,103

Appeal of RONALD J. PONELLA from action of the Board of Education of the Mount Sinai Union Free School District, Jeanne Merone and Robert Frey, regarding the conduct of an election.

Decision No. 14,103

(April 6, 1999)

Kevin A. Seaman, Esq., attorney for respondent board of education

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for the Board of Education of the Mount Sinai Union Free School District ("respondent board"), appeals the conduct of the election. The appeal must be dismissed.

In an election held on May 19, 1998, five candidates ran for two at-large seats on respondent board. Respondents Jeanne Merone and Robert Frey were elected with 757 and 771 votes, respectively. Petitioner received 437 votes (the fourth highest number), 320 less than respondent Merone.

Petitioner contends that irregularities and misconduct during the campaign and election were so pervasive as to vitiate the fairness of the election. Specifically, petitioner contends that he was adversely affected by malicious information that circulated about him in the community. Petitioner maintains that the district’s records access officer, Maureen Poerio, improperly released an interagency memorandum, portions of which were quoted in a negative campaign flyer circulated throughout the community within two weeks of the election. Petitioner also claims that misleading and inaccurate portions of an allegedly closed criminal proceeding against him were disseminated throughout the community prior to the election. Additionally, petitioner asserts that the district’s superintendent of schools, Dr. Peter C. Paciolla, improperly instructed Ms. Poerio to release the interagency memorandum, interfered with the election by electioneering within 100 feet of the polling area and improperly ordered the removal of a campaign sign critical of respondent Merone. Petitioner requests that I nullify the results of the May 19, 1998 election and order a new election.

Respondent board argues that the petition was improperly served, is untimely, fails to comply with the notice provisions of the Commissioner’s regulations, and fails to state a cause of action. Respondent board also asserts that to the extent petitioner objects to the release of information under the Freedom of Information Law ("FOIL"), the Commissioner lacks jurisdiction.

I will first address the procedural issues. 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 . . .." If a school district is named as a party, personal service must be made upon the district clerk, the superintendent or his designee, or a board member. Petitioner initially attempted to serve the petition on June 18, 1998. However, while respondent Frey was personally served on that date, the petition was served on the seventeen-year-old son of district clerk Poerio at her home and the twelve-year-old son of respondent Merone at her home. The affidavits of service upon Ms. Poerio and respondent Merone fail to allege that any prior attempts were made to serve them personally before service was effected upon their respective children. Absent evidence of diligent efforts to effect service upon Ms. Poerio and respondent Merone, service upon their children is improper (Appeal of Federico, 38 Ed Dept Rep 351; Appeal of Donnelly, 33 id. 362). Accordingly, petitioner did not properly effect service on the district and respondent Merone on June 18. Although respondent Frey was properly served on June 18, he could accept service on behalf of himself only, and not on behalf of respondent board, since he was not sworn in as a board member until July 1998.

The following day, June 19, affidavits of service reflect that the petition was personally served on Ms. Poerio and respondents Merone and Frey. An appeal to the Commissioner must be commenced within 30 days from the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). In this case, the election took place on May 19, 1998, but as set forth above, the petition was not properly served on the district and respondent Merone until June 19, 31 days after the election. Petitioner offers no excuse for failure to commence the appeal against these respondents within 30 days of the election. Accordingly, the appeal is untimely.

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, 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). 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. He presents no evidence that the information disseminated in the community actually affected the outcome of an election wherein he placed fourth and received 320 votes less than the second place candidate. He provides no affidavits that anyone who voted against him would have voted differently but for the campaign literature. 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).

Furthermore, petitioner does not even allege that district officials or employees produced, disseminated, or had any connection to the flyers about which he complains (seePhillips v. Maurer, 67 NY2d 672). The only remote nexus between the literature and the district is the fact that one flyer contained information gleaned from a letter alleged improperly released pursuant to a FOIL request. It is well established that alleged violations of FOIL must be pursued in a judicial proceeding in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules, not a "310 appeal to the Commissioner (Public Officers Law "89; Appeal of Goldin, 38 Ed Dept Rep 322). Accordingly, I need not address the parties’ arguments concerning the propriety of the release of the letter.

Finally, petitioner asserts that Superintendent Paciolla interfered with the election by improperly ordering the removal of a campaign sign critical of respondent Merone and electioneering within 100 feet of the polling area in violation of Education Law "2031-a. However, improper electioneering alone is not a sufficient basis for invalidating the results of an election (Appeal of Karliner, 36 Ed Dept Rep 30). Petitioner fails to present sufficient evidence to show that the alleged electioneering affected the outcome of the election. Therefore, there is no basis for me to disturb the election results.