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Decision No. 15,127


Appeal of MARK E. EWART from action of the Board of Education of the Starpoint Central School District regarding an election.


Decision No. 15,127


(October 16,2004)


Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel


MILLS, Commissioner.--Petitioner, an unsuccessful candidate for election to the Board of Education of the Starpoint Central School District (�respondent�), challenges the conduct of the school district election held on May 18, 2004.  The appeal must be dismissed.

Petitioner contends that the successful candidate, Gary Braun, improperly electioneered within 100 feet of the polling place by talking to voters and soliciting votes in violation of Education Law �2031-a.  Petitioner also asserts that respondent failed to name and provide the mandatory number of election officials required by Education Law �2025(3)(b).  Petitioner requests that Mr. Braun resign from his position, and that I reprimand respondent and order it to review its election policies.

Respondent denies any wrongdoing and asserts that the appeal must be dismissed for failure to join a necessary party.  Respondent contends that petitioner has failed to demonstrate that any irregularities occurred in the conduct of the election or that any electioneering took place.

To the extent that petitioner seeks Mr. Braun�s resignation or removal, the petition must be dismissed for failure to join him as a necessary party.  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 such and served with a notice of petition and petition (Appeal of Milazzo, 43 Ed Dept Rep ___, Decision No. 14,999; Appeal of Stolbach, 43 id. ___, Decision No. 14,977; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).   Mr. Braun would be adversely affected by a determination that he resign or be removed.  In this case, petitioner did not name or personally serve Mr. Braun.  Therefore, his failure to do so requires dismissal of petitioner�s claims and demands for Mr. Braun�s resignation or removal.

To the extent that petitioner seeks a reprimand of respondent, there is no provision in the Education Law to authorize the reprimand of board members by the Commissioner of Education (SeeAppeal of Mead, 42 Ed Dept Rep 359, Decision No. 14,881; Appeal of Kozak, 39 id.  278, Decision No. 14,237; Appeal of Kane, 34 id. 116, Decision No. 13,251).

Petitioner�s remaining claims and demands must be dismissed for lack of proof.  In an appeal to the Commissioner, petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR �275.10; Appeal of Brown, et al., 43 Ed Dept Rep ___, Decision No. 14,980) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Goldin, 43 Ed Dept Rep ___, Decision No. 15,048).

Petitioner has not established that Mr. Braun engaged in electioneering in violation of Education Law �2031-a.  An activity does not constitute electioneering absent proof that the activity was used to influence voters to vote a particular way (Appeal of Collins, 39 Ed Dept Rep 226, Decision No. 14,223; Appeal of Gang, 32 id. 337, Decision No. 12,847; Appeal of Fitzpatrick, 30 id. 124, Decision No. 12,408).  A portion of petitioner�s evidence consists of newspaper articles.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Mead, supra; Appeal of Decastro, 41 Ed Dept Rep 415, Decision No. 14,730; Appeal of Wilson, 41 id. 196, Decision No. 14,663).  The remainder of petitioner's alleged proof, consisting of two notarized letters (one from his mother), establishes only that Mr. Braun talked to voters within the 100-foot markers.  He presents no evidence that these conversations constituted electioneering or that the alleged electioneering affected the outcome of the election.  Accordingly, petitioner has failed to meet his burden of proof on this claim.

Petitioner also fails to establish that respondent lacked the requisite number of election inspectors.   Education Law �2025(3)(b) requires the appointment of at least two election inspectors for each ballot box or voting machine.  In her affidavit, the district clerk avers that 11 inspectors were appointed prior the May 18, 2004 election for the four voting machines used in the election, and petitioner offers no proof to the contrary.  (SeealsoAppeal of Uciechowski, 32 Ed Dept Rep 511, Decision No. 12,903).