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Decision No. 14,223

Appeal of DENISE COLLINS from action of the Board of Education of the Wyandanch Union Free School District, Wanda Sykes and Rodney Bordeaux regarding the conduct of an election.

Decision No. 14,223

(October 13, 1999)

Thomas F. Liotti, Esq., attorney for respondent board of education

Kevin A. Seaman, Esq., attorney for respondent Wanda Sykes

MILLS, Commissioner.--Petitioner challenges the results of an election held on May 18, 1999 by the Board of Education of the Wyandanch Union Free School District ("respondent board"). The appeal must be dismissed.

Petitioner, a trustee of respondent board, purports to act on behalf of the board in bringing this appeal. She contends that, although respondent board had established May 3 and 4, 1999 as the district's personal registration days, the District clerk, Wanda Sykes ("respondent Sykes"), permitted 26 voters to register and vote on the day of the election. Petitioner contends that this was improper because there was no resolution by respondent establishing that date as a registration day, no public notice, and no opportunity for voters to inspect the register before the election to challenge illegal voters. Petitioner further alleges that respondent Bordeaux violated the prohibition against electioneering within 100 feet of a polling place, and submits photos of respondent Bordeaux talking to voters as they entered the building, inside the 100-foot markers. Petitioner requests that I overturn the election. Petitioner's request for interim relief was denied on June 29, 1999.

Respondent Sykes admits that she inadvertently violated Education Law "2014 when she permitted voters to register and vote on May 18, but asserts that only 19 voters actually registered and voted that day. Respondents contend that petitioner has not established that the challenged votes affected the outcome of the election. The voters approved the budget by a vote of 224 to 70, a transportation proposition by a vote of 248 to 44, and elected respondent Bordeaux by a margin of 218 votes to 146. Respondents further deny that petitioner is acting on behalf of the board because there has been no resolution by the board authorizing this appeal.

Respondent Bordeaux also denies that he violated the prohibition against electioneering. He admits that he engaged in impromptu conversations with acquaintances, but states that he did not elicit votes or pass literature within the 100-foot zone. Respondent Bordeaux also raises several procedural objections: that service on him was defective because he was served on a Sunday; that petitioner lacks standing because she has not alleged that she suffered any harm as a result of the alleged irregularities; and that petitioner failed to make any complaint about the voter registration process or alleged electioneering on May 18, 1999, although she was present for a significant portion of the day.

The appeal must be dismissed. 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 Brown, 38 Ed Dept Rep 816, Decision No. 14,151; Appeal of Roberts, 33 id. 601, Decision No. 13,162), 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). Petitioner has the burden of establishing all the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Adams, supra; Appeal of Neufang, 38 Ed Dept Rep 567, Decision No. 14,095).

Petitioner correctly asserts that it was improper to permit personal registration on the day of the election. Respondent Sykes concedes that she inadvertently violated Education Law "2014, and recognizes for the future that registration may take place only on the dates specifically authorized by the board. However, the record indicates that only 19 people were improperly permitted to register and vote on May 18. Thus, the registration irregularity did not affect the outcome of the election where the budget passed by 154 votes, the transportation resolution passed by 204 votes, and respondent Bordeaux defeated his opponent by 72 votes. The irregularity alleged by petitioner was not pervasive, nor does petitioner establish that the irregularity vitiated the fundamental fairness of the election or that respondent board's procedures were informal to the point of laxity. Petitioner has thus failed to sustain her burden of proof.

Nor has petitioner established that respondent Bordeaux engaged in electioneering activity in violation of Education Law "2031-a. An activity does not constitute electioneering absent proof that the activity was used to influence voters to vote a particular way (Appeal of Gang, 32 Ed Dept Rep 337, Decision No. 12,847; Appeal of Fitzpatrick, 30 id. 124, Decision No. 12,408). Petitioner's proof establishes only that Mr. Bordeaux talked to voters within the 100-foot markers. She presents no evidence whatsoever that these conversations constituted electioneering rather than the informal conversation asserted by respondent Bordeaux, or that alleged electioneering affected the outcome of the election. Accordingly, this claim must also be dismissed.

In view of this disposition, I need not address the remaining procedural objections raised by respondents.