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Decision No. 14,679

Appeal of EILEEN CARBONE and FRANK MASTROPIETRO from action of the Board of Education of the City School District of the City of Mechanicville, Dennis Baker, Anita Carney, Mark Seber, and Joseph Waldron regarding the conduct of an election.

Decision No. 14,679

(January 25, 2002)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent City School District, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the results of an election held on May 15, 2001, to fill three seats on the Board of Education of the City School District of the City of Mechanicville ("respondent"). The appeal must be dismissed.

Petitioners are two of the three unsuccessful candidates in the 2001 election. The final computation of votes was: Joseph Waldron 629, Dennis Baker 629, Anita Carney 589, Eileen Carbone 525, Frank Mastropietro 509, and Mark Seber 462.

Petitioners claim that the manner in which one of the two voting machines being used for the election was configured caused confusion among voters. It appears that the names of the candidates were arranged on the machine in question horizontally, from left to right, in this order: Seber, Mastropietro, Carbone, Baker, Carney, and Waldron. At approximately 3:30 p.m., respondent"s superintendent was called to examine the machine, and found that the positioning of the strip of paper which listed the candidates" names was not perfectly aligned with the voting levers. The superintendent spoke with all six candidates who happened to be at the polling place and offered all of them the opportunity to view the alignments, but only candidates Seber and Baker did so. The superintendent took the voting machine out of service for a short time, while a technician adjusted the positioning of the paper strip by moving it not more than one-half inch. The voting machine was put back into service approximately an hour after the superintendent first inspected it. The superintendent has submitted an affidavit stating that the candidates who were most affected by the misalignment would have been those to the right side of the machine, i.e., Baker, Carney, and Waldron, all of whom were elected. Petitioners have not submitted a reply to this claim.

The principles involved in analyzing election matters were well summarized in Appeal of Meyer, et al. (40 Ed Dept Rep 34, Decision No. 14,413):

Analysis of alleged election irregularities requires a two-part inquiry. Both prongs of this analysis must be satisfied for the Commissioner to disturb the outcome of an election (Appeal of Santicola, 36 Ed Dept Rep 416 (Decision No. 13,765); Appeal of Goldman, 35 Ed Dept Rep 126 (Decision No. 13,487). First, petitioner must prove improper conduct on the part of the respondent, such as a violation of Education Law or Commissioner"s regulations (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). Second, petitioner must establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, 301 NYS2d 664, aff"d 26 NY2d 709, 308 NYS2d 873; 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"d sub nom Capobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 112 AD2d 640, 492 NYS2d 157). 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 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 she seeks relief (8 NYCRR "275.10; Appeal of Pickreign, 28 Ed Dept Rep 163, Decision No. 12,067).

In this appeal, petitioners have offered no evidence of any irregularity or a violation of the Education Law. They have offered no proof whatsoever in the form of an affidavit or otherwise that any voter was confused by the original configuration of the voting machine. They have relied solely upon copies of three articles from a local newspaper, which, it is well settled, do not constitute proof of any of the facts stated therein (Appeal of Laskas-Gillespie, 40 Ed Dept Rep ____, Decision No. 14,559; Appeal of Shravah, et al., 36 id. 396, Decision No. 13,760; Appeal of Como, 28 id. 483, Decision No. 12,177). As a result, petitioners have completely failed to carry their burden of proof. They have not even approached the quantity of proof necessary to overcome the presumption of regularity where there are claims of voting machine malfunction or related failures (see, e.g., Appeal of Kuschner, et al., 39 Ed Dept Rep 770, Decision No. 14,375, where machines allowed 67 individuals to vote for two candidates, and voter was not directed to vote for only one; Appeal of Ell, 34 id. 394, Decision No. 13,358, numerous unexplainable mathematical irregularities in vote totals so pervasive in nature as to vitiate the electoral process). On this record, there is no basis for me to find in petitioners" favor.