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Decision No. 14,308

Appeal of MARION L. JORDAN from action of the Board of Education of the Brocton Central School District regarding a district meeting.

Decision No. 14,308

(February 15, 2000)

Hodgson, Russ, Andrews, Woods & Goodyear, LLP, Jeffrey F. Swiatek, Esq., of counsel

MILLS, Commissioner.--Petitioner, a resident of the Brocton Central School District, challenges the re-election of Kathy Peters to the board of education. The results of the election gave Ms. Peters 410 votes, and her opponent, Jay Hardenburg, 382 votes. The appeal must be dismissed.

Most of the facts are undisputed. On the date of the election, May 18, 1999, Ms. Peters was the manager of the Herbert Star Apartment complex, a senior citizens housing facility located within the district, and an incumbent member of the board of education. On the day of the election, a school bus owned and operated by the district, and driven by a district employee, went to the Herbert Star Apartments, and transported Ms. Peters and 13 residents of the complex to the polling place in the school auditorium. No other bus was used by the district for this purpose, and it is clear that the district had not leased the school bus to the Herbert Star organization for this purpose.

Petitioner claims that the use of the bus was illegal and that Ms. Peters engaged in "electioneering" (more correctly "campaigning") during the trip to the polls. Petitioner asks me to annul the election because of the illegal use of the school bus and Ms. Peters' alleged campaigning.

Respondent admits that a school bus operated by a school employee brought residents of the senior citizens complex to the polls, that it was the only bus so used, and that it was not leased by the school district to the Herbert Star or any other organization for that purpose. Respondent denies that any campaigning or electioneering occurred on the bus. It further claims that a single school bus has been used for the same purpose for at least 14 years without complaint, that other district residents who did not live at the senior citizens complex had on occasion also used the bus, and that the use of the bus in this fashion was lawful and proper. Respondent takes the position that there is no proof, even if the use of the bus was improper, that the outcome of the election was affected in any way.

The appeal, insofar as it seeks to annul the election results, must be dismissed. Commissioner's regulation "275.8(d) provides in pertinent part: "If an appeal involves the validity of a school district meeting or election, or the eligibility of a district officer, a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent." In the appeal before me, Kathy Peters is not named as a respondent, and there is no proof that she was ever served with a copy of the notice of petition and petition. When joinder is required but not effected, the appeal must be dismissed (Appeal of Levine, 38 Ed Dept Rep 768, Decision No. 14,138; Appeal of Heller, 38 id. 335, Decision No. 14,048; Appeal of Hochhauser, et al., 34 id. 580, Decision No. 13,415).

Even if I were not dismissing the appeal for failure to join and serve a necessary party, 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 the Commissioner's regulations. 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 Brown, 38 Ed Dept Rep 816, Decision No. 14,151; Appeal of Roberts, 33 id. 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 demonstrated 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). Petitioner has the burden of establishing all the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Leman, 38 Ed Dept Rep 683, Decision No. 14,117; Appeal of Robnett, et al., 37 id. 679, Decision No. 13,956). Here, even if petitioner provided any proof that electioneering occurred on the bus, and that all 13 senior citizens voted for Ms. Peters, none of which she has shown, the margin of victory was such that the outcome of the election would not be affected.

I find respondent's use of a district-owned school bus improper. Respondent justifies its use of the bus to transport senior citizens to the polls as a longstanding practice that has been in place for many years without complaint, and as a public service which did not attempt to influence the senior citizens' vote in any way.

Even if respondent has used the bus in this manner for many years, which is challenged by petitioner, the mere fact that the practice was unchallenged previously does not make it legal. Respondent cites a number of cases involving the use of school telephones to encourage voters to come to the polls, and analogizes that situation to the use of the school bus. While there may be some similarities, respondent misses the point made in a number of Commissioner's decisions that a board of education must avoid even the appearance of impermissible partisan activity with respect to the conduct of an election (see, e.g., Matter of Canham, 19 Ed Dept Rep 254, Decision No. 10,120, at p. 256; Matter of Karp, 20 id. 200, Decision No. 10,377, at p. 203; Appeal of San Remo Civic Association, Inc., 28 id. 175, Decision No. 12,073, at p. 177; Appeal of Tortorello and Bartnik, 29 id. 306, Decision No. 12,303, at p. 310; Appeal of Schadtle, 38 id. 599, Decision No. 14,102, at p. 605). In each of these cases, the election results were upheld, but the board of education was directed to refrain from activities which gave an appearance of impermissible partisan activity or impropriety.

Respondent also overlooks the fact that, unlike school telephones, the permissive uses of school buses are largely governed by statute, e.g., Education Law ""1501-b, 1502(1), 1604(21), 1709(25). Respondent has not cited any statutory provision which would allow the use of a school bus in this manner, nor do the circumstances presented fit within these statutory provisions. Certainly, the use of a school bus, driven by a school district employee, to bring to the polls an incumbent school board member and 13 senior citizen voters whose living accommodations are managed by the school board member must present, at minimum, an appearance of impropriety. I direct respondent to discontinue this practice in the future.