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Decision No. 14,151

Appeal of MATTIE L. BROWN from action of the Board of Education of the City School District of the City of Utica, D. Victor Pellegrino and John Longeretta, regarding the conduct of a school district election.

Decision No. 14,151

(June 29, 1999)

Lefkowitz & Keefe, Esqs., P.C., attorneys for petitioner, Thomas K. Keefe, Esq., of counsel

Donald R. Gerace, Esq., attorney for respondent board

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for re-election to the Board of Education of the City School District of the City of Utica ("respondent"), challenges the results of the district's election held on May 19, 1998. The appeal must be dismissed.

On May 19, 1998, respondent conducted an election to permit district voters to elect two members to the board of education for five-year terms. Six candidates ran for the two seats, including two incumbents, petitioner and D. Victor Pellegrino.

Respondent uses the voter registration logs of the Oneida County Board of Election ("Board of Election") for all school elections and budget votes. On April 6, 1998, respondent requested that the Board of Election supply printouts of its digitized voter registration books, and two individuals to work at the election to answer questions and verify the registration of voters. Respondent received the voter registration books on May 12, 1998.

The polls were open on May 19, 1998 from 12:00 p.m. to 9:00 p.m. Respondent asserts that it received no complaints about the election until approximately 8:40 p.m., when Anthony Brown, petitioner's son, contacted the district clerk, David Bruno. The parties disagree as to what transpired between Mr. Brown and Mr. Bruno. However, all parties agree that Mr. Brown complained to Mr. Bruno that registered voters were being denied the right to vote.

The two successful candidates, John Longeretta and D. Victor Pellegrino, received 2,640 and 2,102 votes, respectively. Petitioner received 1,356 votes, 1284 votes less than Mr. Longretta and 746 votes less than Mr. Pellegrino, which placed her in fifth place in the election. Respondent received and accepted the election results at its meeting on May 20, 1998. This appeal ensued.

Petitioner raises a number of objections to the conduct of the May 19, 1998 election. Specifically, she contends that respondent failed to have proper registration records at the polls; that qualified voters were improperly denied the right to vote, especially in high-minority districts; that voting machines broke down and the delay in repairing them caused voters to leave without voting; and that respondent improperly denied candidates or their representatives the opportunity to observe personally the ballot count and vote tally. Petitioner requests that I annul the results of the May 19, 1998 election, order a new election and direct respondent to establish election procedures that comply with the Education Law.

Respondent denies petitioner's claims, and asserts that it properly complied with all the requirements of the Education Law in its conduct of the election. Respondent further contends that, even if petitioner's claims are correct, petitioner has failed to show that any alleged irregularities actually affected the outcome of the election. Respondent also maintains that the petition and notice of petition are defective.

Initially, I will address respondent's procedural claim. Respondent alleges that the petition fails to contain clear and concise statements of petitioner's claims, in violation of "275.10 of the Commissioner's Regulations. Upon review, I find that the petition sufficiently states a claim and that respondent was adequately apprised of the challenges raised by petitioner (seeAppeal of Smith, 37 Ed Dept Rep 583, Decision No. 13,934). I therefore decline to dismiss the petition on this ground.

The appeal, however, must be dismissed on the merits. There is a presumption of regularity in the conduct of an election (Appeal of Robnett, et al., 37 Ed Dept Rep 679. Decision No. 13,956; Appeal of Morris, et al., 37 id. 590, Decision No. 13,936). 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, Decision No. 13,162), were so pervasive that they vitiated the electoral process (Appeal of Roberts, supra; Matter of Gilbert, 20 Ed Dept Rep 174, Decision No. 10,366), 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, Decision No. 11,356, 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, Decision No. 12,177). In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Lilley, 38 Ed Dept Rep 126, Decision No. 13,399; Appeal of Acme Bus Corporation, 37 id. 219, Decision No. 13,848; Appeal of Catherine B., 37 id. 34, Decision No. 13,797). I find that petitioner has not met this burden, and cannot prevail.

Petitioner first contends that respondent failed to maintain proper voter registration records at many of its 68 election districts, especially at 14 districts that have high minority populations. The record reflects that petitioner complained to respondent, at its May 20, 1998 meeting, that African-American voters had appeared at their regular districts to vote, and election inspectors said that they could not find the voters' names on the registration rolls and did not permit them to vote. Petitioner states that she personally saw dozens of African-American voters being turned away from the polls, including voters she knew to be registered and voters that had voter registration identification with them. Petitioner attaches affidavits from 2 voters who assert that they were not permitted to vote although they were properly registered, and she contends that literally hundreds of voters were similarly turned away, especially in the high-minority districts.

Second, petitioner notes that, in the past, if a person was a registered voter, he or she could sign a paper ballot and the election inspector could check the name and grant the right to vote. She states that this procedure was not available at the May 19, 1998 election.

Respondent submits that it properly relied on the Board of Election voter registration lists to determine the eligibility of voters, as permitted by Education Law "2606. Respondent further notes that at no time during the election did anyone request to have a name added to the voter register (Education Law " 2606[7]), nor did the district receive a court order directing that a name be added to the voter register (id.). Respondent asserts that the district clerk investigated petitioner's claims of registration errors, and found no proof that any qualified voter was denied the right to vote. Mr. Bruno states that, on May 20, 1998, he personally checked with each election supervisor, and was advised that less than ten persons had appeared at the polling places that did not have names and signature cards in the Board of Election voter registration polls. None of these persons produced identification or proof that they had resided in the district for at least 30 days or otherwise met the qualifications to vote (see Education Law ""2603 and 2606). Respondent did not specifically respond to petitioner's second claim, regarding the availability of paper ballots, but alleged generally that its procedures had complied with the Education Law.

The record before me does not support a finding that there were any irregularities in respondent's use of the Board of Election's voter registration lists, or in the registration procedures used at the polls. Education Law "2038 provides that the general provisions governing school district meetings, ""2001 through 2038, apply to small city school districts, unless specifically provided otherwise by Article 53 of the Education Law (""2601 through 2613).

The district clerk may, upon request, add a voter's name to the registration poll ledgers, if the district clerk finds that the voter's name was improperly omitted by the board of registration due to mistake, error or neglect. However, voters whose names do not appear in the registration poll ledgers, either initially or as added by the district clerk pursuant to "2606(7), may be permitted to vote in accordance with Education Law "2019-a by paper ballot, after executing an affidavit of eligibility.

I am concerned about petitioner's statement that the paper ballot procedure prescribed by "2019-a was not available at the May 19, 1998 election, and respondent does not directly address this claim in its response. However, although petitioner alleges that Mr. Brown brought one voter to the district clerk to have him administer an oath so she could vote, respondent denies that any voter ever identified himself or herself to Mr. Bruno or offered proof of residency. I cannot determine from the record before me whether Mr. Bruno expressly denied an explicit request to permit the voter to cast a paper ballot in accordance with "2019-a.

In any event, petitioner does not sustain her burden of showing that any alleged registration irregularities actually affected the outcome of the election. Petitioner presents the affidavits of only two voters who assert that they were improperly denied the right to vote. Although petitioner believes that literally hundreds of voters were improperly turned away, she presents no proof whatsoever of any irregularities of that magnitude. Such speculative and conclusory allegations do not warrant overturning an election (Appeal of Hennessey, 37 Ed Dept Rep 480, Decision No. 13,909; Appeal of Donnelly, 33 id. 362, Decision No. 13,079). Given the large margin of victory for the successful candidates, petitioner has simply not provided evidence that these alleged registration violations affected the results of the election. The record before me indicates that, at most, approximately 10 voters were not permitted by the election inspectors to vote because their names were not in the registers.

Petitioner's remaining allegations similarly do not establish irregularities that affected the outcome of the election. Petitioner alleges in conclusory terms that voting machines broke down in some low-income voting districts with no emergency ballots available, and that many voters became frustrated at the delay in repairing the machines and left without voting. Petitioner presents no evidence, however, to establish that any malfunctions actually occurred, or indicate which voting machines were allegedly involved, whether the machines were unavailable for a significant period of time, whether the machines inaccurately recorded votes, or the number of voters allegedly affected. Mr. Bruno states that he was informed by the voting machine technicians that there had been no problem with the functioning of voting machines during the election. Petitioner's unsubstantiated, conclusory allegations are insufficient to establish her burden of proving that there was an irregularity in the use of the voting machines (Appeal of Hennessey, supra; Appeal of Donnelly, supra).

Petitioner also complains that no candidate or candidate's representative was allowed to canvass or review the vote tallies. However, petitioner makes no allegation whatsoever that any incident took place as a result of this alleged violation that affected the outcome of the election (Matter of Boyes v. Allen, supra; Appeal of Roberts, supra), and the Commissioner of Education does not issue advisory opinions in appeals brought pursuant to Education Law "310 (Appeal of Lambert, 37 Ed Dept Rep 599, Decision No. 13,937; Appeal of a Student with a Disability; 37 id. 307, Decision No. 13,864).

I have considered petitioner's other contentions and find them without merit.

In sum, petitioner has failed to establish that any alleged irregularities affected the outcome of the election or were so pervasive that they vitiated the electoral process, nor has petitioner established that respondent's procedures were lax to the point of informality. There is thus no reason for me to disturb the election results.