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Decision No. 14,698

Appeal of PAUL JAY ESTRO from action of the Board of Education of the Spencer-Van Etten Central School District and C. Thomas Bailey, Superintendent, regarding a district meeting.

March 19, 2002

(Decision No. 14,698)


Sayles & Evans, attorneys for respondents, James F. Young, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals various actions of the Board of Education of the Spencer-Van Etten Central School District ("respondent board") and its Superintendent of Schools C. Thomas Bailey ("respondent Bailey") regarding a referendum held on June 19, 2001. The appeal must be dismissed.

On June 19, 2001 district voters approved an $18.5 million capital project referendum authorizing respondent board to construct additions to and renovate existing school district facilities. The referendum passed with 657 "Yes" votes to 653 "No" votes.

Petitioner challenges the outcome of the vote on several grounds. He alleges that respondents engaged in illegal electioneering by printing and distributing materials exhorting district voters to vote in favor of the referendum and by improperly placing such materials within 100 feet of the polls. He alleges respondent Bailey urged voters to vote "Yes" on the referendum during a speech at the district"s awards banquet on June 13, 2001. Petitioner also contends that respondent board improperly failed to keep a "log" of eligible voters at the polls, failed to verify voter signatures and addresses at the polls, failed to ensure that appropriate election officials were present throughout the voting hours, and failed to provide absentee ballots to two individuals who had inquired about receiving them. Petitioner also claims that a voting machine malfunctioned during the voting. Finally, petitioner claims that respondent permitted two school district employees to use district resources to print and distribute materials exhorting the voters to support the referendum and to recruit students during school hours to assist them in distributing these materials in the community. Petitioner seeks an order invalidating the results of the June 19, 2001 vote.

Respondents contend that no irregularities occurred in connection with the June 19, 2001 vote and that, even if some irregularity had occurred, petitioner has not demonstrated that the outcome of the vote was affected.

In an appeal to the Commissioner, petitioner bears the burden of establishing all of the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Boiko, 40 Ed Dept Rep ___, Decision No. 14,513; Appeal of Taylor, 39 id. 368, Decision No. 14,261; Appeal of Trombley, 39 id. 115, Decision No. 14,189) and to demonstrate a clear legal right to the relief requested (Appeal of Boiko, supra; Appeal of Taylor, supra; Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120). None of petitioner's claims satisfy this standard.

To invalidate the results of a school district election, petitioner must establish not only that an irregularity occurred, but that the irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Huber, 41 Ed Dept Rep ___, Decision No. 14,676; Appeal of Goldin, 40 id. ___, Decision No. 14,573; Appeal of Lawson, 38 id. 713, Decision No. 14,124), were so pervasive that they vitiated the electoral process (Appeal of Meyer, et al., 40 Ed Dept Rep 34, Decision No. 14,413; Appeal of Roberts, 33 id. 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 and Bd. of Ed., Glen Cove City School District, 112 AD2d 640). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Goldman, 35 Ed Dept Rep 126, Decision No. 13,487; Appeal of Roberts, supra). In the present appeal, petitioner has failed to establish that any irregularity occurred affecting the outcome of the June 19, 2001 vote.

First, petitioner claims that respondents engaged in unlawful electioneering by printing and distributing materials urging district voters to vote "yes" on the June 19 referendum. While a board of education may provide informational material to the voters concerning a proposed budget or proposition (Education Law "1716), school district funds may not be used to exhort the electorate to support a particular position (Phillips v. Maurer, 67 NY2d 672). Statements that do not specifically urge a "yes" vote may nevertheless violate the holding in Phillips v. Maurer if such statements otherwise seek to persuade or convey support for a particular position (Appeal of Christe, 40 Ed Dept Rep ___, Decision No. 14,514; Appeal of Gravink, 37 Ed Dept Rep 393, Decision No. 13,888; Appeal of Rampello, 37 id. 153, Decision No. 13,830). However, my review of the record of the present appeal reveals that the materials challenged by petitioner that were distributed by respondents in connection with the June 19, 2001 referendum are factual and informational in nature and cannot be fairly construed as advocating a "yes" vote.

Petitioner also alleges that respondent Bailey improperly urged voters to support the referendum in his speech at the district"s June 13, 2001 awards banquet. Respondents submit an answer verified by respondent Bailey in which he denies such allegation, averring that, although he encouraged those in attendance at the banquet to vote on the referendum, he did not indicate how they should vote. Petitioner submits no reply or other evidence to refute respondent Bailey"s verified statement and, thus, fails to establish any impermissible conduct by respondent Bailey.

Respondents also submit two affidavits by the school district employees who printed and distributed materials in support of the referendum. Both affidavits state that the employees used their own resources to print and distribute the materials. Further, they aver that they did not conduct any activity during school hours and that any assistance provided by students occurred after school hours of the students" own volition. Again, petitioner offers no evidence to refute those affidavits.

Petitioner also claims that there was no method of ascertaining whether any individual was, in fact, eligible to vote at the June 19 referendum because respondent board failed to provide a "log" of eligible voters at the polls. Respondent board is not required to adopt a system of personal registration (Education Law "2014) and has not done so. Thus, respondent board was not required to maintain a list of eligible voters at the polls. Respondent board did maintain a poll list during the vote on which each individual presenting him or herself to vote entered his or her address and signature, as required by Education Law "2029. I note that, aside from his general procedural challenge, petitioner does not allege that any specific individual who voted at the June 19, 2001 referendum was ineligible to vote.

Petitioner further claims that "tellers" assigned to watch the polls were not present throughout the entire voting period and, therefore, there was no way to ensure that voters did not vote more that once. The record indicates that respondent board appointed a chief election inspector as required by Education Law "2025(3)(b), who was present throughout the hours that the polls were open. Education Law "2025(3)(b) further requires, "At least two election inspectors shall be appointed for each ballot box or voting machine". The record indicates that respondent board used two voting machines for the June 19 vote. Exhibit H of the petition indicates that respondent board divided the polling hours into three shifts and appointed four individuals (two per machine) for each of those shifts, in compliance with Education Law 2025(3)(b).

Furthermore, petitioner"s allegation that unqualified individuals may have voted at the June 19 referendum or that qualified voters may have voted more than once is purely speculative. Petitioner offers no proof that such incidents actually occurred. Mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul a vote (Appeal of Crowley, 39 Ed Dept Rep 665, Decision No. 14,345; Appeal of Kranz, 37 id. 257, Decision No. 13,853). In the absence of such proof, the vote will not be set aside.

Petitioner also claims that one voting machine "jammed" during the vote and that one of the election officials "reset" the machine, potentially losing votes. Respondents assert in their verified answer that, when the first voter entered the machine to vote, the key activating the machine was in the wrong position, and the individual was unable to register a vote on the machine. One of respondents" appointed election officials turned the key to its proper position, and the voter was then able to register a vote on the machine. Respondents deny that the machine jammed or that any votes were lost due to machine malfunction.

In support of his allegation, petitioner relies on a discrepancy between the number of voters who signed the poll list (1325) and the total number of "yes" or "no" votes tallied (1310). In response, respondents allege that the number of voters who signed the poll list is identical to the total number recorded on the public counters on the voting machines, indicating the number of people who entered the voting booths to vote. Respondents further contend that, after entering the voting booth, some people, through error or inattention, do not properly operate the voting machine so that the machine fails to properly register either a "yes" or "no" vote. Respondent board"s clerk provided an affidavit indicating that, in every election since 1996, there has been a slight discrepancy between the number of people who entered the voting booth and the number of votes cast, and that the machines had not malfunctioned in any way. Petitioner submits no evidence that the discrepancy he cites in the present matter resulted from factors other than voter error.

Finally, petitioner submits affidavits of two individuals asserting that they attempted to obtain absentee ballots for the June 19 referendum, but were unable to successfully contact respondent Bailey"s office to get information about obtaining absentee ballots prior to the June 19 vote. Each affiant indicates that he or she would have voted "no" on the referendum. Respondents submit the affidavit of the school district clerk stating that applications for absentee ballots were provided to all district residents requesting them. She further avers that her office handles all such requests, and that the two individuals cited by petitioner never contacted her to obtain absentee ballot applications. Petitioner submits no reply contravening the district clerk"s affidavit.

Moreover, even if the two individuals who allege that they would have voted "no" on the referendum were improperly denied absentee ballots, such irregularity would not affect the outcome of the vote, as the referendum passed by four votes. Therefore, having found no irregularity that would have affected the outcome of the June 19, 2001 vote, there is no basis on which to nullify the results of that vote.




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