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Decision No. 14,977

Appeal of RICHARD STOLBACH from action of the Board of Education of the East Ramapo Central School District and Superintendent Jason Friedman regarding an election.



(October 28, 2003)


Greenberg, Wanderman & Fromson, attorneys for respondents, Stephen M. Fromson, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges various actions of the Board of Education of the East Ramapo Central School District ("respondent board") and Superintendent Friedman relating to the budget vote and school board election held on June 3, 2003.  The appeal must be dismissed.

Petitioner ran, unsuccessfully, for a seat on respondent board at the June 2003 election.  He contends that a number of actions taken by respondents prior to the election were improper.  Petitioner claims that a member of respondent board and the middle school principal both spoke in favor of the budget at a PTA meeting, and that the principal urged attendees to elect candidates who favored the proposed budget.  Petitioner also maintains that respondents allowed district equipment and administrative staff to be used by the PTA to support the budget and the re-election of incumbent board members.

Petitioner also asserts that respondent superintendent advocated support for the proposed budget at a public symposium.  Furthermore, petitioner contends that respondent board"s website posts biographical information on current school board members, giving an unfair advantage to the incumbents running for re-election.  In addition, petitioner claims that district staff delayed the provision of absentee ballots, which made it impossible for petitioner"s son, who is studying abroad, to receive and return his ballot on time.  Finally, petitioner alleges that respondent board violated the Open Meetings Law.

Petitioner requests that I declare the results void and order a new election.  Petitioner further requests that respondents be directed not to use district resources for improper advocacy.  He also requests that respondent board be directed to remove incumbent candidates" biographies from its website.

Respondents deny all of petitioner"s allegations and claim that petitioner has failed to state a cause of action.  Respondents also maintain that petitioner has failed to join the successful candidates as parties to this appeal, and that petitioner failed to effect service upon respondent superintendent.  Respondents further contend that the appeal is premature because it was commenced just before the election.  Finally, respondents claim that the Commissioner of Education lacks jurisdiction over alleged violations of the Open Meetings Law.

Initially, I will address the procedural issues.  Section 275.8(a) of the Commissioner"s regulations requires that an appeal to the Commissioner be commenced by personal service of a copy of the petition upon each named respondent.  Respondent superintendent contends he was never served with a copy of the petition.  Petitioner submits no evidence of personal service on the superintendent.  Therefore, the petition must be dismissed as to respondent superintendent.

To the extent that petitioner seeks to invalidate the election of board members, the appeal must be dismissed.  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 joined as such (Appeals of Campbell, et al., 41 Ed Dept Rep 207, Decision No. 14,665; Appeal of McAndrew, 39 id. 565, Decision No. 14,312; Appeal of Lawson, 38 id. 713, Decision No. 14,124).  Clearly the rights of the successful candidates would be affected if the school board election is declared void.

Section 275.8(a) of the Commissioner's regulations requires that a copy of the petition be personally served upon each named respondent.  An individual must also be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Lawson, supra).  In this case, petitioner has not named or personally served the individual members of respondent board who were successful candidates in this election.  Therefore, the appeal, as it relates to the election of board members, must be dismissed for failure to join necessary parties (Appeal of Campbell, et al., supra).

I must also dismiss petitioner"s allegation that respondent board violated the state"s Open Meetings Law.  Public Officers Law "107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Taber, 42 Ed Dept Rep ___, Decision No. 14,843).

Petitioner"s claims that respondents improperly advocated for votes in favor of the budget must be dismissed on the merits.  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 Huber, et al., 41 Ed Dept Rep 240, Decision No. 14,676, petition to review decision dismissed January 7, 2003 [Sup. Co., Albany Co., Special Term; Spargo, J.]; Appeal of Boiko, 40 id. 409, Decision No. 14,513; Appeal of Taylor, 39 id. 368, Decision No. 14,261) and demonstrating a clear legal right to the relief requested (Appeal of Huber, et al., supra; Appeal of Boiko, supra; Appeal of Taylor, supra).  None of petitioner"s claims satisfy this standard.

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., supra; Appeal ofLawson, supra), were so pervasive that they vitiated the electoral process (Appeal of Laurie, 42 Ed Dept Rep ___, Decision No. 14,867; Appeal of Mead, 42 id. ___, Decision No. 14,881) 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 Mead, supra; Appeal of Huber, et al., supra).

Although a board of education may provide informational material to the voters concerning a proposed budget or proposition (Education Law "1716), the Court of Appeals held in Phillips v. Maurer, 67 NY2d 672, that school district funds may not be used to exhort the electorate to support a particular position.  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 Meyer, et al., 38 Ed Dept Rep 285, Decision No. 14,034; Appeal of Gravink, 37 id. 393, Decision No. 13,888).

Petitioner does not support his allegations of improper advocacy with specific details, affidavits or other proof.  Both the board member and the principal submitted affidavits denying they ever made improper comments at any PTA meetings.  Further, there is nothing in the record to support petitioner"s conclusory allegations that the district"s equipment and supplies were used to assist the PTA in supporting the budget vote and the incumbents running for school board.

The superintendent states in a sworn affidavit that the symposium he attended was an annual school district event.  The superintendent attests that he spoke only on the symposium topic of parental involvement in education. The superintendent also states that only two incumbent candidates for the school board were present at the symposium, and neither one made any statement regarding their candidacy for office.  Although the assistant superintendent reminded the symposium audience that the vote would be held on June 3, he did not advocate for the budget or particular candidates.  Further, it appears that only voter registration materials were available from the Rockland County Board of Elections at the sign-in table.

Thus, petitioner has not established that the alleged irregularities occurred at any of the pre-election events.  Petitioner also has not presented evidence that any of the alleged improprieties affected the outcome of the election, vitiated the process or demonstrate failure to adhere to the law.

In response to petitioner"s allegations regarding absentee ballots, the district clerk attests that an absentee ballot was not initially sent to petitioner"s son, who was attending school in Israel, because the district did not have an Israeli address.  Once the address was received, the ballot was promptly mailed.

Petitioner has failed to present evidence of improper handling of absentee ballots.  To the contrary, the record shows that district staff took additional steps to obtain the correct address for petitioner"s son.  In any event, petitioner has failed to establish that his son"s inability to vote affected the outcome of the election.

Petitioner"s allegation concerning the website biographies is wholly unsupported.  Petitioner does not submit the material that was available on the website as part of the record.  Therefore, I cannot determine whether it was in any way improper.

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