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Decision No. 14,156

Appeal of PHILIP J. COMO and DENISE BELLINGHAM from action of the Board of Education of the North Shore Central School District regarding a bond referendum.

Decision No. 14,156

(July 15, 1999)

John P. Reali, Esq., attorney for petitioners

Rains & Pogrebin, P.C., attorneys for respondent, David M. Wirtz, Sharon N. Berlin and Howard M. Miller, Esqs., of counsel

MILLS, Commissioner.--Petitioners, residents of the North Shore Central School District, challenge a March 18, 1999 bond referendum. The appeal must be dismissed.

On March 18, 1999, respondent held a special district meeting to permit district voters to vote on a $30,000,000 bond referendum to finance capital projects within the district. The vote was scheduled to occur between 7:00 a.m. and 10:00 p.m. in the North Shore High School Gymnasium. At approximately 12:00 p.m. on election day, the district received an anonymous call from an individual who stated that there was a bomb in the North Shore High School. The police were contacted and the high school was immediately evacuated. The gymnasium, where the vote was being held, was locked and secured. A police officer remained in the gymnasium to ensure that no one had any contact with the voting machines, while other police officers searched the building. At approximately 1:25 p.m., the police advised that the public could re-enter the building and the polls were reopened at that time. The polls were then continuously open for the next eight and one-half hours until 10:00 p.m. The voters approved the referendum by a margin of 39 votes. This appeal ensued. On April 23, 1999, petitioners’ request for interim relief was denied.

Petitioners claim that certain qualified voters were not permitted to vote because the polls were closed due to the bomb threat. They further claim that voters were advised that the election was postponed and would be rescheduled. In support of their claims, petitioners attach 23 affidavits by individuals alleging that each was a qualified voter at the time of the election, but was not permitted to vote therein due to the bomb threat. They further assert that they would have voted against the bond referendum. Petitioners surmise that additional district residents were likewise denied the opportunity to vote on the bond referendum. They request that I set aside the election results and order a new election.

Respondent argues that petitioners lack standing to bring this appeal. Respondent further maintains that the district’s response to the bomb threat was entirely consistent with the Revised Bomb Threat Response Guideline issued by the State Education Department in conjunction with the New York State Police in February 1999. Respondent also contends that petitioners have failed to meet their burden of proof.

As a threshold matter, I find that petitioners have standing to bring this appeal as residents and taxpayers of the district. However, while petitioners may appeal on their own behalf, they lack standing to assert the rights of others (Appeal of Schuler, 37 Ed Dept Rep 512, Decision No. 13,915; Appeal of Cappa, 36 id. 278, Decision No. 13,724; Appeal of Ulcena, 33 id. 328, Decision No. 13,065). To the extent petitioners seek to appeal on behalf of other district taxpayers, their claims are dismissed.

The appeal must be dismissed on the merits. To overturn an election, petitioners must prove improper conduct on the part of respondent such as a violation of the Education Law or Commissioner’s regulations (Appeal of Ponella, 38 Ed Dept Rep 610, Decision No. 14,103; Appeal of Adams, 38 id. 549, Decision No. 14,091; Appeal of Chechek, 37 id. 624, Decision No. 13,943). Petitioners 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 Adams, supra), were so pervasive that they vitiated the electoral process (Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162; Matter of Gilbert, 20 id. 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’d sub nom, 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 an election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Ponella, supra; Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483, Decision No. 12,177). Petitioners have the burden of establishing all the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Adams, supra; Appeal of Pickreign, 28 Ed Dept Rep 163, Decision No. 12,067).

Petitioners have failed to demonstrate that any irregularities in the conduct of the election occurred, or, affected the outcome of the election (Appeal of Schuler, supra). According to the Revised Bomb Threat Response Guideline, a school district has an obligation and responsibility to ensure the safety of the students and other school occupants upon the receipt of a bomb threat. If a threat indicates that a bomb is in a school building, evacuation is necessary, unless the building has been previously inspected and secured as described within the Guideline. Given the potential for serious consequences associated with a bomb threat, I find that district officials acted prudently by temporarily closing the polls for one hour and 25 minutes to allow the police to conduct a search of the school building. In addition, I find that petitioners failed to provide any evidence that district officials misinformed voters by stating that the polls would not reopen or that the election would be rescheduled.

Moreover, there has been no showing that the bomb threat and the district’s response thereto had any effect on the outcome of the election. The bond referendum passed by 39 votes. Petitioners have submitted only 23 affidavits in support of their petition. Absent proof that at least 39 individuals were unable to vote in the election, petitioners have failed to prove that the bomb threat affected the outcome of the election (Appeal of Adams, supra; Appeal of Robnett, 37 Ed Dept Rep 679, Decision No. 13,956; Appeal of Hennessey, 37 id. 480, Decision No. 13,909). Accordingly, there is no basis upon which to order a new election.