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Decision No. 14,122

Appeal of H. WILLIAM VanALLEN from actions of the Board of Education of the City School District of the City of Kingston, Anita Reynolds, Arthur W. Stellar and Clayton VanKleeck regarding election irregularities.

Shaw & Perelson, LLP, attorneys for respondents, Margo L. May, Esq., of counsel

Decision No. 14,122

(May 8, 1999)

MILLS, Commissioner.--Petitioner, a resident of the City School District of the City of Kingston, challenges the actions of the district’s superintendent and board of education ("respondent board") relating to a school district election held on May 19, 1998. The appeal must be dismissed.

On May 19, 1998, respondent board conducted its annual election to permit the voters of the district to vote on the school district’s 1998-99 budget and to fill five seats on the board of education. Out of a total of 6,122 votes cast, candidates Bernard A. Feeney III, Robert Diamond, Ian Horowitz, Zelma Harrison and Elaine Rylance were elected with 4,309, 4,082, 4,022, 3,983 and 3,922 votes, respectively, and the 1988-99 budget was approved by a margin of 1,555 votes.

Eleven candidates vied for the vacant seats on the board. The five successful candidates were endorsed by a group of district residents known as the Community Advocates for Responsible Education ("CARE"). At least five of the remaining six candidates were members of the "Shadow Board", an opposing group of residents, who frequently criticized the activities of the school district and disseminated information about respondents through various media outlets, including its weekly television show aired on the Public Access, Education and Government Cable Television Station ("PEG"). Petitioner, reportedly, is "an appointed commissioner" of PEG. Respondents maintain that the information disseminated by the Shadow Board is inaccurate, misleading and misrepresented, and respondents, on several occasions, have sought to correct this information through letters, public statements and cable television appearances.

In this appeal, petitioner contends that Board President Clayton VanKleeck, Superintendent Arthur W. Stellar and District Clerk Anita Reynolds engaged in improper electioneering by using public funds to urge, through "persuasive communication", a "No" vote against the Shadow Board and a "Yes" vote for the school budget. Petitioner also alleges that respondents acted in concert with local media outlets to promote a particular vote and further violated the neutrality of the polling place and petitioner’s right to a fair election by placing electioneering flyers within several feet of the polling booths. Petitioner asks that I invalidate the election results, install an interim board pending a future election and initiate an internal investigation of my staff because of its alleged involvement with respondents’ partisan electioneering activities. Petitioner’s request for interim relief pending a decision on the merits was denied on June 8, 1998.

Respondents contend that the petition should be dismissed for failure to state a claim upon which relief may be granted, failure to join necessary parties, improper service and for untimeliness. Respondents further maintain that petitioner has failed to meet his burden of proof, that their actions were proper and that they ensured all reasonable precautions were taken to prevent unlawful electioneering.

Before reaching the merits, I will address the procedural issues raised by respondents. Respondents contend that the appeal should be dismissed because petitioner failed to effectuate personal service upon named respondents VanKleeck and Stellar. Section 275.8 of the Commissioner’s Regulations requires that a copy of the petition must be personally served upon each named respondent. Here, the record indicates that petitioner served three copies of the petition on respondent Reynolds alone. Thus, petitioner only effectuated service on respondent board and respondent Reynolds (8 NYCRR "275.8). To the extent that petitioner requests that I take action against respondents VanKleeck and Stellar, such claims must be dismissed: I have no jurisdiction over these individuals (Appeal of Duffy, 36 Ed Dept Rep 257; Appeal of Kriaris, 31 id. 353; Appeal of Healy, 29 id. 391).

Respondent also contends that the appeal is untimely to the extent that petitioner complains about events which occurred more than thirty days prior to the commencement of this appeal. An appeal to the Commissioner must be instituted within thirty days from the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). To the extent that any of the actions about which petitioner complains were directly related to the May 19, 1998 election process, petitioner could not have known whether or not he was aggrieved until the election was actually conducted, and, with respect to those allegations, the appeal is timely (see, Appeal of Lambert, 37 Ed Dept Rep 599; Appeal of Pucci, 31 id. 3; accord, Appeal of Scanio, 22 id. 315). However, to the extent that petitioner’s allegations relate to events that have no direct relationship to the subject election and occurred more than thirty days prior to the commencement of this appeal, those allegations are dismissed as untimely, particularly where petitioner has offered no excuse for the delay.

Respondents argue 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 that a petition must contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief. Such statement must be sufficiently clear to advise respondent of the nature of petitioner's claim and of the specific act or acts of which he complains. In my view, petitioner's claims against respondents are sufficiently apparent and respondents were able to address those claims in their answer. Petitioner is not represented by counsel on this appeal. Thus, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to respondents (Appeal of Loughlin, 35 Ed Dept Rep 432; Appeal of Roxbury Taxpayers Alliance, et al., 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 necessary parties. It is apparent that petitioner contests the election of the five successful candidates to the board 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 candidates, none of whom is named as a respondent in the caption of the petition. Moreover, there is no evidence that these individuals were served with a copy of the notice of petition and petition. Accordingly, the petition must be dismissed for failure to join necessary parties (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 respondents, such as a violation of the Education Law or the 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; 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'dsubnomMatter of Capobianco v. Ambach, 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 this relief (8 NYCRR "275.10; Appeal of Pickreign, 28 Ed Dept Rep 163).

In view of the foregoing, I find that petitioner has not met this burden of proof inasmuch as he has not presented any evidence to demonstrate that any voter was influenced or misled as a result of the materials circulated by respondent, or that the outcome of the election was affected by the alleged improprieties. My review of the materials disseminated by respondent board indicate that the contents thereof were informational only and apparently sought to correct alleged inaccuracies and misstatements that the Shadow Board members had made about the district’s finances and proposed budget. A May 1998 newsletter, for instance, as well as a flyer distributed at the polling locations on election day, contained only fiscal information on the school district and proposed budget, and reminded the readers to vote on election day. None of this information can be said "to exhort the electorate to cast their ballots in support of a particular position advocated by the board" (Matter of Phillips v Maurer, 67 NY2d 672, 674) or constituted improper electioneering in violation of Education Law "2031-a.

Petitioner also challenged, as improper, the distribution by the Kingston Teachers Federation ("KTF") of a letter exhorting its members to vote for the five CARE candidates and against the Shadow Board members. Copies of the letter were placed in the mailboxes of the KTF members. In his sworn affidavit, however, Superintendent Stellar attested that, upon being informed of the flyer’s distribution several days before the May 19, 1998 election, he immediately investigated the matter, directed his school principals to retrieve the material from the mailboxes and admonished the union leaders to refrain from such activity on school property. Similarly, when respondents learned that election-related material exhorting a particular vote had been mailed to the parents of certain students, respondents investigated and determined that the material had been prepared and disseminated by the members of CARE without the use of school district funds and resources. Petitioner has proffered no evidence to establish that district funds were used in preparing or distributing the union letter or the CARE flyer; neither has petitioner shown that respondents sanctioned or otherwise supported these activities at the time they occurred. Accordingly, petitioner has not proven that respondent engaged in any partisan activities sufficient to overturn the election (Appeal of Friedman, 32 Ed Dept Rep 601). Nevertheless, because respondents are ultimately responsible for ensuring that district elections are conducted in a fair and lawful manner, I admonish respondents to take affirmative steps to ensure that, in the future, it does not lend even indirect support to partisan activities by allowing other groups access to its formal channels of communication (Appeal of Friedman, supra).

I have reviewed petitioner's remaining claims and find them without merit.

Based on the foregoing, I find no basis upon which to invalidate the election.