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Decision No. 14,117

Appeal of JAMES LEMAN from action of the Board of Education of the South Orangetown Central School District regarding a bond referendum.

Decision No. 14,117

(April 29, 1999)

Raymond G. Kuntz, P.C., attorneys for respondent, Mario L. Spagnuolo, Esq., of counsel

MILLS, Commissioner.--Petitioner, a resident of the South Orangetown Central School District ("district") challenges a March 4, 1998 bond referendum. The appeal must be dismissed.

On March 4, 1998, the district held a special meeting to vote on a bond issue to finance $7,787,720 for improvements to the physical plant of the district's schools. Although there is a discrepancy in the record as to the exact final vote count, it is undisputed that the voters approved the bond referendum by a margin of at least 264 votes. This appeal ensued. A request for interim relief was denied on March 30, 1998.

Petitioner alleges that the Board of Education of the South Orangetown Central School District ("respondent") engaged in improper electioneering practices, and requests that I void the results of the March 4, 1998 election. Specifically, petitioner alleges that respondent placed promotional placards near the voting machines, and permitted "vote yes" materials on cars right outside the door of one polling place; that the board issued a February 1998 mailing urging voters to approve the bond referendum, and that copies of the mailing were posted at one polling place; that non-registered voters were allowed to vote; that respondent permitted the PTA to use school facilities and equipment for a promotional "get out the vote" campaign; and that, in tallying the final vote, a school trustee acted without an appointed chairman present and used a room that did not permit any public or press entry.

Respondent denies the claims of electioneering, and contends that the placards contained only factual information about the bond and costs, and were removed upon petitioner’s complaint just to avoid controversy. Respondent also alleges that 2 bumper-sticker size "vote yes" signs on cars were more than 115 feet from the building where voting was taking place; that all voters were duly registered either on the school district voting list or on the master voting list provided by the county, and were properly permitted to vote; and that private citizens organized a "get out the vote" campaign, but this campaign was not financed by public money nor were the citizens allowed to use school facilities or given special access to voting lists. Respondent further asserts that the public and press were in a large main boardroom, but the district clerk used the telephone in a smaller adjacent room to obtain unofficial, preliminary vote counts because there was no telephone in the large room. Public access to this smaller room was restricted due to its size, and the need to ensure accurate tabulation, and respondent contends that its actions were reasonable and proper. Respondent further asserts that petitioner has not established the alleged improper actions affected the results of the special meeting.

The appeal must be dismissed. There is a presumption of regularity in the conduct of an election (Appeal of Robnett, et al., 37 Ed Dept Rep 679; Appeal of Morris, et al., 37 id. 590). 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 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’dsubnomCapobianco 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 Morris, supra; Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483). Petitioners have the burden of establishing all the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Robnett, et al., supra; Appeal of Pickreign, 28 Ed Dept Rep 163).

Petitioner fails to establish that respondent participated in improper electioneering by use of placards or bumper stickers. Although there were four placards in the lobby at the polling places, the record indicates that these placards contained purely factual information concerning the bond referendum such as the impact on taxes, the amount to be paid through State aid, a description of improvements and the location of voting districts. Such placards are not objectionable. A board of education may provide informational material to the voters concerning a proposed budget or proposition (Education Law "1716; Appeal of Meyer, et al., 38 Ed Dept Rep 285), so long as the material is not used to exhort the electorate to support a particular position (Phillips v. Maurer, 67 NY2d 672 [1986]). In addition, the record indicates that the partisan bumper stickers were more than 100 feet away from any entrance to the polling place, as required by Education Law "2031-a.

Petitioner also presents no concrete evidence of voter qualification irregularities or affidavits identifying particular voters, and simply bases his allegations on "information and belief" and unspecified observations made at 3 polling locations. Similarly, petitioner presents only conclusory allegations and references to conversations with unspecified other persons about the "get out to vote" campaign, and both of these claims were refuted by respondent. Such speculative and conclusory allegations are not the kind of statements that warrant overturning an election (Appeal of Hennessey, 37 Ed Dept Rep 480; Appeal of Donnelly, 33 id. 362).

As to the issue of using a private room without public access to tally the final vote, the record indicates that, to obtain informal preliminary voting results, the district clerk used a telephone in a small room adjacent to the large boardroom where the public and press awaited the vote tallies, because the large room had no telephone. This procedure was apparently used only to obtain the preliminary results, and the final votes were formally delivered to respondent in an official meeting. There is no allegation that anyone tampered with the ballots or vote tally, or that the announced preliminary or final tallies were different from the actual preliminary or final tally of votes. Accordingly, there is no basis on which to overturn the election results on this ground.

Petitioner further complains that copies of respondent's February 1998 mailing were displayed at one polling place, which were removed at petitioner's request. I have examined the mailing submitted as an exhibit to the petition. I find that, for the most part, the February 1998 mailing contains only content-neutral information with respect to the date, time, place and purpose of the vote. However, certain assertions impermissibly urge approval of the proposition, such as the statements by respondent's president that the bond issue "is the best way" to address student population growth, and that the proposition was "the best long-term decision for the South Orangetown community." These statements constitute improper advocacy on behalf of the proposition, and such language should be avoided. It is not clear from the record whether these particular statements were part of the material that was posted and removed at petitioner's request, as other portions of the mailing contained factual information that was reproduced on the placards, addressed supra.

However, to invalidate the results of a school district election, a petitioner must establish not only that irregularities occurred, but also that the irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., supra; Appeal of Schadtle, Decision No. 14,102 [March 31, 1999]; Appeal of Meyer, et al., 38 Ed Dept Rep 285). Petitioner presents no evidence that the posting of the February 1998 mailing, or any of the other actions complained of, had any effect on the outcome of the vote, especially in view of the significant margin of victory. Petitioner has failed to offer a single affidavit of any voter asserting that he or she would have voted differently but for the alleged improper actions of respondent board. In sum, the record before me does not establish that any irregularity occurred in relation to the March 4, 1998 bond referendum that affected the outcome of the vote. Consequently, there is no basis on which to overturn the results of the election.