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Decision No. 14,881

Appeal of CATHERINE V. MEAD from action of the Board of Education of the Livingston Manor Central School District, board members Allan Clark, Sr., Sandra Coe, Jeanne Shaver, Judy VanPut, and James Powell, Superintendent Kenneth Gray, and District Clerk Darlene Smith, regarding the conduct of an election.


(May 30, 2003)


Hogan & Sarzynski, LLP, attorneys for respondents, John B. Hogan, Esq., of counsel 

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for election to the Board of Education of the Livingston Manor Central School District ("the board"), challenges the results of the May 21, 2002 school board election.  The appeal must be dismissed. 

Board members James Powell and Jeanne Shaver each sought re-election in May 2002.  Shortly before the election, petitioner learned that neither Powell nor Shaver had filed a nominating petition with the district clerk in accordance with Education Law "2018(a), and that the district had not required nominating petitions from incumbents running for reelection for at least the past eighteen years.  Consequently, Powell"s and Shaver"s names did not appear on the respective paper ballots used by the board, but each continued to run for re-election as a write-in candidate.  Powell received 186 write-in votes and petitioner received 125 votes for the first seat.  Edna Simpson won the second seat with 245 votes, compared to 192 write-in votes for Shaver. 

Petitioner contends that: Powell and Shaver were improperly listed as incumbent candidates for election in media notices; the district clerk improperly instructed voters obtaining absentee ballots how to vote for the incumbents as write-in candidates; and on the day of the election, election inspectors electioneered by improperly instructing voters to vote for the incumbents as write-in candidates.  She also asserts that board president Judy VanPut failed to respond to letters from her and Simpson about the nominating petitions, the media notices and the clerk"s improper conduct.  In addition, petitioner maintains that:  there was no public notice of an emergency board meeting held on April 25, 2002; Superintendent Gray failed to post or make available the absentee ballot list and failed to address petitioner"s concerns; there were no distance markers posted to prevent electioneering within 100 feet of the entrance to the polling place; copies of official-looking ballots showing Powell and Shaver"s names written in were improperly posted in public and used as advertisements; ballots improperly included the incumbent"s name in bold letters; and the district clerk"s mother improperly served as an election inspector.

Petitioner requests that I investigate the nominating petitions of all board members; discard all the write-in votes for Powell and Shaver; overturn Powell"s election in favor of petitioner; reprimand and hold accountable all respondents and/or others found responsible for the wrongdoings alleged in the petition; and mandate that all district voting be done by electronic voting machines. 

Respondents deny any wrongdoing and assert that the appeal must be dismissed for failure to join necessary parties and for failure to show that any alleged irregularities affected the outcome of the election.

The appeal must be dismissed because petitioner failed to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be named as a respondent and served with the notice of petition and petition (Appeal of Monahan, 42 Ed Dept Rep ___, Decision No. 14,824; Appeal of Olsen, 42 id. ___, Decision No. 14,761; Appeal of Holliday, 40 id. 534, Decision No. 14,549).  In an appeal to overturn the results of an election, the successful candidate is therefore a necessary party, and failure to join the successful candidate requires dismissal of the appeal (see, Appeals of Campbell, et al., 41 Ed Dept Rep ___, Decision No. 14,665; Appeals of Laskas-Gillespie, et al., 40 id. 568, Decision No. 14,559).  Petitioner requests that I discard the 186 write-in votes for Powell, which would result in petitioner"s election to the seat he now holds.  While petitioner includes Powell"s name in the caption of the appeal, she did not serve the petition on him and thus did not properly join him as a party (Appeal of Holliday, supra).  Petitioner"s failure to join Powell necessitates dismissal of the appeal. 

In addition, the appeal must be dismissed to the extent that petitioner asks that I hold accountable or reprimand board members and the superintendent, because  petitioner also failed to serve them with the petition and notice.  Moreover, there is no provision in the Education Law to authorize the reprimand of a board member or district staff by the Commissioner of Education (SeeAppeal of Kozak, 39 Ed Dept Rep 278, Decision No. 14,237; Appeal of Kane, 34 id. 116, Decision No. 13,251; Appeal of Silano, 33 id. 20, Decision No. 12,961).

Even if it were not dismissed on procedural grounds, the appeal would be dismissed on the merits.  To invalidate the results of a school district election, petitioner must establish not only that irregularities 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, et al., 41 Ed Dept Rep ____, Decision No. 14,676), were so pervasive that they vitiated the electoral process (Appeal of Laurie, 42 Ed Dept Rep ___, Decision No. 14,867; Appeal of Meyer and Mittelstaedt, 40 id. 34, Decision No. 14,413), or demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Huber, supra; 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 Dist., 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 Meyer and Mittelstaedt, supra; Appeal of Goldman, 35 Ed Dept Rep 126, Decision No. 13,487).  Furthermore, in an appeal to the Commissioner, petitioner bears the burden of establishing all of the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Boiko, 40 Ed Dept Rep 409, 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  demonstrating a clear legal right to the relief requested (Appeal of Boiko, supra; Appeal of Taylor, supra).  Petitioner has not met that burden of proof in this appeal.

I note that petitioner relies on newspaper articles to establish her claims.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Decastro, 41 Ed Dept Rep ___, Decision No. 14,730; Application of Wilson, 41 id. ___, Decision No. 14,663; Appeal of Toftegaard, 25 id. 159, Decision No. 11,532).

Education Law "2018(a) requires that candidates for the board of education be nominated by a petition, "signed by at least twenty-five qualified voters of the district or two percent of the voters who voted in the previous annual election...," whichever is greater.  The petition must be filed in the district clerk"s office not later than 30 days preceding the election.  Respondents admit that candidates Powell and Shaver did not file nominating petitions as required by Education Law "2018(a) and that incumbent candidates had not filed petitions for many years.  I remind the board that it must ensure that the requirements of the Education Law pertaining to district elections are followed.  A nominating petition is required in order to place a candidate"s name on the ballot and 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]; see, Appeal of Grant, 42 Ed Dept Rep ___, Decision No. 14,816).

Nonetheless, a person need not file a nominating petition in order to be elected because write-in votes are permissible under Education Law "2032(2)(e), which provides:

One blank space shall be provided under the name of the last candidate for each separate specific office so that voters may vote for candidates who have not been nominated for the offices to be filled at such election and the writing in, with a pencil having black lead, by a voter, of a name in the blank space so provided, shall indicate a vote.

Accordingly, since Powell received more votes than petitioner, albeit as a write-in candidate, the voters duly elected Powell, and petitioner has failed to demonstrate that the absence of nominating petitions affected the outcome of the election.

Petitioner alleges that instead of giving impartial instructions, election inspectors improperly advocated in favor of the incumbents by instructing voters how to write- in Powell and Shaver"s names on the ballots.   Respondents deny that any electioneering took place or that election inspectors told voters for whom to vote.  Petitioner presents signed but unnotarized statements from four voters who claim that they were witness "to the election monitors...telling and instructing...on how to write-in James Powell and Jeanne Shaver on the ballot as write-ins."  Even if I were to accept these statements, petitioner has failed to demonstrate that such instructions influenced any voters or affected the outcome of the election that she lost by 61 votes.  Petitioner does not submit any affidavits from district voters who voted for Powell establishing that they would have voted differently but for the allegedly misleading information (Appeal of Hoefer, 41 Ed Dept Rep    , Decision No. 14,664; Appeal of Krantz, 38 id. 485, Decision No. 14,077).  In addition, since Shaver, the incumbent in the other seat, lost the election by 53 votes, it is clear that voters were not unduly influenced by the alleged instructions by election inspectors.

Moreover, in contrast, respondents submit signed and notarized affidavits from the six election inspectors, all of whom aver that the district clerk specifically instructed them not to tell anyone how to vote, but that they answered voters" questions about how to cast a write-in ballot by showing voters where to write-in their choice.  One inspector avers that when voters asked where to write in Powell"s and Shaver"s names, she responded, "if you want to vote for James Powell write his name here, if you want to vote for Jeanne Shaver, write her name here."  While this could be construed as instructing voters how to vote, it could also be construed, in a election where candidates vie for a specific seat and there are separate ballots for each seat, as proper instruction on how to fill out each ballot.  In any event, petitioner has failed to show that such instructions affected the outcome of the election or that any of the alleged irregularities were so pervasive that they vitiated the fundamental fairness of the electoral process (Appeal of O"Brien, 42 Ed Dept Rep ___, Decision No. 14,868).

     As to petitioner"s claim that the incumbents" names improperly appeared on the ballot, I note that Education Law "2032(2)(b) requires that the ballot include the name of the last incumbent.

In light of this disposition, I need not address the parties" remaining contentions.