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Decision No. 14,816

Appeal of GHENYA B. GRANT from action of the Board of Education of the Wyandanch Union Free School District, Rev. Henry Bacon, Sakinah Kareem, Wanda Sykes, Juanita Jones and Betty Jo Joynes, regarding a district election.

Decision No. 14,816

(October 31, 2002)

Van Nostrand & Martin, attorneys for all respondents except Sakinah Kareem, David S. Desmond, Esq., of counsel

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for election to the Board of Education of the Wyandanch Union Free School District ("respondent board" or "board"), challenges the results of the district election held on May 21, 2002. The two successful candidates, Henry Bacon and Sakinah Kareem, are also named as respondents, as are Juanita Jones, the chairperson of the election, and Betty Jo Joynes, deputy district clerk. The appeal must be dismissed.

The May 21, 2002 election included a school budget proposition and the selection of two school board members. Bobby Blassingame and petitioner and incumbent Henry Bacon vied for one board vacancy, and Andrew Wills, Sakinah Kareem and incumbent Rodney Bordeaux competed for the second board vacancy. Henry Bacon and Sakinah Kareem were declared the winners, based on the results: Bacon 235, Grant 191 and Blassingame 99 votes for the first vacancy; and Kareem 310, Bordeaux 121 and Wills 96 votes for the second vacancy. This appeal ensued. Petitioner seeks to invalidate the results of the election.

Petitioner alleges a number of election irregularities. Petitioner contends that Henry Bacon"s nominating petitions were invalid, because his name did not appear on the petitions as the person seeking election to the vacant board seat, and because 28 of the 57 people who signed the nominating petitions were allegedly unregistered or listed incorrect addresses. Petitioner further challenges the configuration of the ballot on the voting machines, because it did not match an alleged sample ballot that was available at the polling place and did not match the configuration of the voting machine counters. Petitioner also raises several challenges to the reading and announcing of the vote tally, including the alleged improper reading of the voting machine tabulations by the district"s counsel rather than the chairperson, and the alleged failure to certify the election results properly. Petitioner additionally contends that sixty unqualified voters were permitted to vote, that the poll list did not comply with law, and that one qualified voter was not permitted to challenge absentee ballots.

Respondents contend that the nominating petitions for Henry Bacon were valid and contained a sufficient number of signatures, and that the alleged election irregularities are insufficient to set aside the election results. Respondents also maintain that the petition was not properly served, the Commissioner lacks jurisdiction over respondents, the affidavits of service are invalid and the petition is untimely. I will first address the procedural objections.

Respondents assert that service upon the district clerk, Wanda Sykes, was made by substituted service, that the affidavits of service are defective because they are not notarized, and that the affidavit of service upon Juanita Jones is defective because it incorrectly states that she is the district clerk. I must agree that the purported affidavits of service are defective. Section 275.9 of the Commissioner"s regulations requires that affidavits of service be in the form specified in the regulations, and the form requires the person making the affidavit to have his or her signature notarized by a notary public or other person authorized to administer oaths within New York. However, petitioner"s six purported affidavits of service are not notarized and instead are only "affirm[ed] under the penalties of perjury." Only an attorney admitted to practice in New York and representing a party to an appeal before the Commissioner may submit such an affirmation rather than an affidavit (8 NYCRR "275.7; Appeal of Tarolli, 38 Ed Dept Rep 60, Decision No. 13,982). The affidavits of service are therefore invalid and this proceeding must be dismissed.

Respondents also assert that the challenge to Henry Bacon"s nominating petitions is untimely. An appeal to the Commissioner must be initiated within 30 days from the making of the decision or the performance of the act complained of, except for good cause shown. (8 NYCRR "275.16). The district clerk accepted Mr. Bacon"s nominating petitions on April 21, 2002. Petitioner, however, did not commence this appeal until June 21, 2002, some two months later, and did not offer any reason for the delay. Accordingly, petitioner"s claims concerning the nominating petitions must be dismissed as untimely (Appeals of Campbell, et al., 41 Ed Dept Rep ___, Decision No. 14,665).

The appeal must also be dismissed on the merits. To invalidate the results of an election, petitioner must establish not only that an irregularity occurred, but that the irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Huber, 41 Ed Dept Rep ___, Decision No. 14,676), 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), 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 Leman, 38 Ed Dept Rep 683, Decision No. 14,117). To warrant setting aside an election, petitioner must establish that the improprieties are substantial and not merely technical in nature (Appeals of Laskas-Gillespie and Warshaw, 40 Ed Dept Rep 568, Decision No. 14,559). In the instant appeal, although petitioner raises a number of challenges to the conduct of the election, petitioner has not established that any irregularities affected the outcome of the May 21, 2002 election.

Petitioner first contends that the nominating petitions of Henry Bacon, who was running for reelection, are defective because the petitions did not include his name as the candidate for whom signatures were being solicited. Petitioner also contends that 28 of the 57 signatures on the petitions are invalid. Petitioner is correct that a nominating petition should specify the name and residence of the candidate (Education Law "2018[a]). Although Mr. Bacon"s name appears on the petitions in the space identifying the particular vacancy he was seeking to fill (which was his incumbent seat), the petitions did not specifically list his name as the candidate seeking nominating signatures and thus violated "2018(a). However, there is no proof whatsoever in the record that even a single voter was confused as to the identity of the person who was seeking the nomination, much less a sufficient number to invalidate the nomination for lack of the requisite signatures. The record reflects that, as each person was asked to sign the petition, the person soliciting the signature explained that the petition was to nominate Mr. Bacon to run again for his expiring seat on the board. Similarly, although petitioner challenges 28 of the 57 signatures on Mr. Bacon"s nominating petitions, the remaining 29 unchallenged signatures were sufficient to nominate Mr. Bacon for the election (Education Law "2018[a]).

Petitioner next asserts that the canvass of the voting machine tallies was invalid because the tallies were read and announced by the district counsel rather than the district clerk. In the event voting machines are used, ballots or machine tallies are to be canvassed by the inspectors of election ("2034[2]), who announce the results of the ballot/machine count to the chairperson of the election ("2034[5]), who declares the result of the ballot ("2034[7][a]). It appears respondent board did not strictly follow these procedures, because the district"s counsel read the counter values aloud in the view of the election inspectors, and the counter tallies were written onto the tabulation sheet by the chief election inspector. The chief election inspector also declared the results of the vote, and thereafter gave the tabulation sheet to the chairperson. However, although the procedures were not in strict compliance with "2034, any deviation appears to be deminimis and there is no proof in the record that any of these irregularities resulted in an inaccurate vote tally or otherwise affected the outcome of the election.

Petitioner also challenges the configuration of the voting machines" ballot, and asserts that voters were confused because that configuration did not match an alleged "white sample ballot" that was exhibited in the polling area. In May 2002, respondent board mailed a fact sheet about the proposed 2002-03 budget that included a yellow sample ballot. The yellow sample ballot showed the text of the budget proposition, and listed the candidates who were running for each of the two vacant seats. The three candidates for incumbent Bacon"s seat were listed vertically as 1A Grant, 2A Bacon and 3A Blassingame. The candidates for the second seat were similarly listed vertically as 1B Wills, 2B Kareem and 3B Bordeaux. Petitioner contends that campaign literature for the candidates urged voters to vote for a particular row and number to elect the particular candidate.

However, at the polling place, there was a document, which petitioner refers to as the "white sample ballot," that had different row and column designations for the candidates. The candidates for the first vacancy were listed vertically in the same order as on the yellow sample ballot, but with different number and letter designations. The document listed the candidates as 1A Grant, 1B Bacon and 1C Blassingame, rather than 1A, 2A and 3A respectively as designated on the yellow sample ballot. The candidates for the second vacancy were listed as 3A Wills, 3B Kareem and 3C Bordeaux, rather than 1B, 2B and 3B, respectively. Petitioner contends that this discrepancy led to mass voter confusion because voters could not select the candidates of their choice. For example, petitioner contends that voters who intended to vote for "1B Wills" (Mr. Wills"s row and column designation as noted in the yellow sample ballot) actually voted for "1B Bacon" (Mr. Bacon"s row and column designation on the white document at the polling place).

Respondents assert that the white document was not a sample ballot. They explain that the document was actually a tally sheet that had been provided by the company supplying the election machines for use in tallying the results when looking at the back of the voting machines. The company had realized prior to the election that the counter designations on the back of the machines did not match the ballot on the voting machine. The company therefore provided a tally sheet that corresponded to the row and column designations that would appear on the back of the machine when the votes were canvassed. Respondents state that the ballot configuration used in the voting machines matched the yellow sample ballot that had been sent to voters. The white tally sheet was apparently not intended for use by the voters but was solely to be used to canvass the votes from the machines. Respondents assert that the votes were tallied in accordance with the tally sheet, and correctly reflect the votes that were cast for each candidate.

Petitioner does not appear to dispute that the voting machines" ballot was identical to the yellow sample ballot mailed to the voters. However, she submits 31 identical pre-typed unsworn statements from voters, who maintain that they were confused by the discrepancy between the row numbers in the yellow and white "sample ballots," and that they "could not vote for the candidates of [their] choice because the row numbers were not the same ... The white sample ballot at the polls had candidates with row C and the yellow sample ballot only had rows A and B." Petitioner also submits 5 identical pre-typed unsworn statements by voters contending that there were mechanical problems with the voting machines which prevented them from voting on some items on the ballot, and one unsworn statement that alleged representatives for two candidates were electioneering inside the 100-foot marker and influenced her vote.

Respondent properly objects to the statements, because all of the statements are unsworn. As noted above, unsworn statements are not valid affidavits. Petitioner has the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Brown, 42 Ed Dept Rep ___, Decision No. 14,760), and has not submitted valid affidavits to prove any irregularities. In any event, even if I considered the statements, they would not establish that any irregularities affected the outcome of the election. None of the statements say that the voter would have voted for petitioner if there were no irregularities, nor do they identify the candidate for whom the voters mistakenly cast a vote. Moreover, the 37 statements do not constitute a basis to overturn an election where petitioner lost to the winning candidate by 43 votes.

Petitioner further alleges that 60 unqualified voters were permitted to vote. Petitioner contends that these individuals do not appear on the most current list of registered voters maintained by the Suffolk County Board of Elections, and do not appear on the rolls maintained by the district. However, petitioner does not establish that a timely challenge was made to the qualifications of such voters before they were permitted to vote. Challenges to the qualifications of a voter must be made no later than the time the voter appears at the polls to vote (Appeals of Laskas-Gillespie and Warshaw, supra; Appeal of Crowley, et al., 39 Ed Dept Rep 665, Decision No. 14,345). A person who has the right to challenge a voter and permits him or her to vote without such challenge, is not allowed later to object to such voter's participation (Appeals of Laskas-Gillespie and Warshaw, supra; Appeal of Crowley, et al., supra). Failure to timely object to the alleged 60 unqualified voters thus requires dismissal of this claim.

Petitioner next contends that the poll inspectors improperly failed to record the legal addresses of 6 voters. Petitioner does not claim that these voters were unqualified, however, and there is no showing that any polling list irregularities affected the outcome of the election (Appeal of Diamond, 39 Ed Dept Rep 541, Decision No. 14,304).

Petitioner further contends in conclusory fashion that the district clerk prevented a qualified voter from challenging absentee ballots that were not consistent with the original ballot. Petitioner provides no details of the identity of the voter, the nature of the alleged inconsistency, or how many absentee ballots were allegedly affected. She therefore has failed to sustain her burden of establishing that any alleged irregularity affected the outcome of the election.

Respondent further alleges that Mr. Bacon violated the Education Law by using district property for campaign purposes, by putting the number of a telephone owned by the district on his campaign material and inviting voters to call him at that number to confirm their support. Mr. Bacon explains that the telephone number had inadvertently been placed on a campaign flyer, but that the telephone was not used for campaign purposes. In the absence of any proof that the district-owned telephone was actually used for campaign promotional purposes, and that such use of the telephone had an effect on the outcome of the election, this contention does not afford any basis to overturn the election results.

Upon review of the record, I find no evidence that any irregularities affected the outcome of the election, were so pervasive that they vitiated the electoral process or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law. In view of the foregoing, I need not address the remaining contentions raised by the parties.

Although I am constrained to dismiss the challenges to the nominating petitions, I remind respondent board that it must ensure that the requirements of the Education Law pertaining to district elections are strictly followed. Nominating petitions should clearly and properly state the name and address of the candidate seeking nomination, as well as identify the particular expiring term for which the candidate is seeking nomination (Education Law "2018[a]).

In addition, respondent board should avoid making tally sheets or other such documents publicly available in the polling place to avoid any possible voter confusion. Further, poll lists should be carefully maintained, and all necessary addresses and other information should be entered onto the lists during the election. I expect these rules to be followed scrupulously in the November 5, 2002 election, and all future elections.