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Decision No. 14,196

Appeal of DONALD DeBERARDINIS from action of the Board of Education of the Ossining Union Free School District regarding the conduct of an election.

Decision No. 14,196

(August 23, 1999)

Ingerman Smith, L.L.P., attorneys for respondent, Anna M. Scricca, Esq., of counsel

CATE, Acting Commissioner--Petitioner challenges the results of the May 18, 1999 election held by the Board of Education of the Ossining Union Free School District ("respondent"). The appeal must be dismissed.

On May 18, 1999, respondent held an election on the proposed 1999-2000 district and Library budget; on a Library bond proposition; and to elect three members to respondent board from six at-large candidates. The election was held at one polling site, the Ossining High School, and six machines were used. The school budget passed by 354 votes; the library budget by 916 votes; and the bond proposition by 512 votes. Alice Joselow, Thomas Knight, and Sharon Hughto were the winning candidates, receiving 1522, 1502 and 1320 votes, respectively. The other three candidates received 1280, 1158, and 548 votes, respectively.

Petitioner alleges "based on information and belief, that there were substantial irregularities with the voting equipment used" in the election, and that "voting officials were improperly informing voters that it was impossible to pull some levers, including but not limited to, the levers under the "NO" designation on the budget proposals." Petitioner asserts that he spoke with at least 40 people who had experienced irregularities. He also contends that at least one candidate lost by only 40 votes. Petitioner requests that the Commissioner direct respondent and/or the Board of Elections of Westchester County to send the election results and records regarding the voting machines to the Commissioner. Petitioner contends that respondent’s adoption of the election results was unfair, arbitrary and capricious, and denied petitioner his right to participate in a fair election.

Respondent asserts that the petition fails to state a claim upon which relief may be granted, was improperly served, and fails to join necessary parties. In addition, respondent asserts that petitioner has failed to meet his burden of proving improper conduct by respondent, or that the alleged irregularities actually affected the outcome of the election.

As a threshold matter, the appeal must be dismissed for failure to join necessary parties. Petitioner essentially seeks to overturn the results of the election, which included the election of three candidates to respondent board. 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 Lawson 38 Ed Dept Rep 713, Decision No. 14,124; Appeal of Heller, 38 id. 335, Decision No. 14,048; Appeal of Davis, 37 id. 17, Decision No. 13,793). Section 275.8(d) of the Commissioner's regulations requires that a copy of the petition be served upon the board of education and upon each person whose right to hold office is disputed and such person joined as a respondent. An individual must also be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Heller, supra).

Since petitioner seeks to overturn the election results, the rights of the winning candidates would clearly be affected if the petition were granted. Petitioner did not name these individuals as respondents in the caption of the petition or in the notice of petition, nor did he personally serve them with copies. The appeal must, therefore, be dismissed for failure to join necessary parties.

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 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). 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 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). Petitioner has the burden of establishing all the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Adams, supra; Appeal of Pickreign, 28 Ed Dept Rep 163, Decision No. 12,067).

Petitioner has failed to demonstrate that any irregularities occurred or affected the outcome of the election (Appeal of Schuler, 37 Ed Dept Rep 512, Decision No. 13,915). The petition consists of unsubstantiated allegations that 40 unidentified and unspecified voters may have experienced irregularities. There are no affidavits from any voters claiming that they were denied the opportunity to vote or that their vote would have been different. Mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Ponella, supra).

In her affidavit, Kathy Plank, the district clerk, affirms that no machines malfunctioned. She avers further that she received only two complaints from voters during the course of the election, both expressing confusion about the location of the "NO" lever on the Library bond proposition. However, given the length of the proposition, the "NO" lever was not positioned directly below the icon of the "NO" lever on the proposition. After receiving the first complaint at approximately 9:00 a.m., Ms. Plank contacted the district counsel, who advised her, as a prophylactic measure, to instruct all twelve election inspectors to point out the "YES" and "NO" levers to each voter as he or she entered the booth. According to Ms. Plank, the only other complaint came when the election inspector for one booth was on a break, and the alternate inspector neglected to point out the lever locations to this voter. Ms. Plank avers that neither of the complaining voters stated that he or she had been unable to actually cast a vote.

In sum, petitioner has failed to prove any actual irregularities with the voting machines, or that any irregularity affected the outcome of the election. The Library bond proposition passed by 512 votes. Hence, even if all 40 voters with whom petitioner allegedly spoke submitted affidavits indicating they would have voted differently, the results of the Library bond proposition would not have been affected. The only election result that could possibly have been affected is the fourth place finish of candidate Nicholas Caputo, who received 40 fewer votes than Ms. Hughto. Petitioner has failed to establish that even one of the alleged 40 voters would have cast their ballot for Mr. Caputo.

In light of this disposition, I need not address the parties’ remaining contentions.