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Decision No. 15,207

Appeal of ELSY MECKLEMBOURG GUIBERT from action of the Board of Education of the Elmont Union Free School District regarding an election.

Decision No. 15,207

(April 13, 2005)

Colum P. Nugent, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for election to the Board of Education of the Elmont Union Free School District ("respondent"), appeals the conduct of a school district election. The appeal must be dismissed.

On May 18, 2004, respondent conducted its annual meeting and school board election. Petitioner ran for the school board seat held by incumbent Lorraine Ferrigno. Ms. Ferrigno defeated petitioner by a one-vote margin, 976 to 975.

Petitioner alleges that several irregularities occurred in the conduct of the election. She alleges that poll workers failed to properly monitor and account for votes because at two of the seven voting venues there was a one-vote discrepancy between the voting machine total and the poll list. Petitioner also alleges that two registered voters were denied the opportunity to vote, and that several non-residents improperly voted in the election. Petitioner asserts that these irregularities are substantial and in light of the one-vote margin of victory, require that the Commissioner order a revote of the contest between her and Ms. Ferrigno. Petitioner's request for interim relief staying the installation of Ms. Ferrigno as a board member was denied on June 24, 2004.

Respondent provides a detailed explanation of the election process as evidence that it conducted the election properly in accordance with the Commissioner's regulations and New York State laws.

To the extent that petitioner seeks to prevent Ms. Ferrigno from being sworn in as a duly elected member of respondent, that portion of the appeal must be dismissed as moot. The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Passer, 44 Ed Dept Rep ___, Decision No. 15,160; Appeal of Colety, et al., 42 id. 162, Decision No. 14,806). The installation of elected board members was scheduled at respondent's reorganization meeting on July 6, 2004, after petitioner's request to stay the installation was denied. There is no evidence in the record indicating that the installation did not occur as scheduled.

The appeal must be dismissed for failure to join 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 Ewart, 44 Ed Dept Rep 147, Decision No. 15,127; Appeal of Milazzo, 43 id. 294, Decision No. 14,999; Appeal of Stolbach, 43 id. 218, Decision No. 14,977). If an appeal involves the validity of a school district meeting or election, the petition must be served upon each successful candidate whose right to hold office is disputed and such person must be joined as a respondent (8 NYCRR �275.8[d]; Appeal of Milazzo, supra). Here, petitioner named the board only in the caption of the appeal and served the district clerk, on behalf of the board. Ms. Ferrigno was neither named as a respondent nor personally served with a copy of the notice of petition or petition. Since a decision in petitioner's favor would clearly affect the rights of Ms. Ferrigno as the winning candidate, petitioner's failure to name and serve her requires dismissal of the appeal. Accordingly, I need not consider Ms. Ferrigno's request to intervene or appear as an amicus.

The appeal must also be dismissed on the merits. To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162), were so pervasive that they vitiated the electoral process (Appeal of Brannon, 42 Ed Dept Rep 220, Decision No. 14,830; Appeals of Laskas-Gillespie and Warshaw, 40 id. 568, Decision No. 14,559; Appeal of Roberts, supra), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Christe, 40 Ed Dept Rep 412, Decision No. 14,514; Matter of Levine, 24 id. 172, Decision No. 11,356, affdsubnom. Capobianco v. Ambach and Bd. of Educ., 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 an election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Collins, 39 Ed Dept Rep 226, Decision No. 14,223; Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483, Decision No. 12,177). Petitioner has the burden of establishing all the facts upon which she seeks relief (8 NYCRR �275.10; Appeal of Wierzchowski , 39 Ed Dept Rep 682, Decision No. 14,348). To warrant setting aside an election, petitioner must establish that the improprieties are substantial and not merely technical in nature (Appeal of Morris, et al., 37 Ed Dept Rep 590, Decision No. 13,936; Appeal of Taylor, 31 id. 46, Decision No. 12,564). Petitioner has failed to meet that burden.

Respondent describes the voting procedure as follows. The Nassau County Board of Elections provides voter registration books containing buff cards, or signature cards, for all voters registered to vote in school elections, that are sent to each polling place the day prior to the election. The district clerk maintains a duplicate set of books at the administration building. There were seven polling places at which a chairperson, co-chairperson and election workers were present. When an individual presents himself or herself to vote, an election worker checks the election register for the buff card. Each individual signs the poll list, and then votes on a voting machine. The poll list total is matched with the number of votes on the voting machine periodically and at the end of the day.

If the buff card cannot be found in the election register, the potential voter is referred to the chair or co-chairperson who consults the registration books. If the individual's name cannot be found in the books, the chair or co-chair telephones the district clerk or her designee, who searches for the name again in the books or on disk. If the name still cannot be found, the chair or co-chair provides the potential voter with a paper ballot and form affidavit that is printed on an envelope. The individual completes the ballot and affidavit, a so-called "challenge vote," which are sent to the district clerk's office at the end of the day.

At the end of election night, the machine totals showed Ms. Ferrigno defeating petitioner 973 to 972. The district clerk received nine challenge votes. According to respondent, three days later the clerk sent the names and addresses of those nine individuals to the Nassau County Board of Elections, which responded that five of the nine individuals were registered to vote in the county. The clerk then opened these five envelopes in the presence of respondent's president, counsel, and superintendent, and petitioner, Ms. Ferrigno and her husband. Two votes were for petitioner, giving her 974 votes, and three were for Ms. Ferrigno, giving her a total of 976 votes.

According to respondent, one of the four other "challenge" voters had neglected to include his address. Subsequently, when his address was found, the buff card was located in the registration book. Accordingly, his envelope was accepted and opened by the clerk in the presence of petitioner and respondent's counsel. The vote was cast in favor of petitioner, bringing her total to 975, still one short of Ms. Ferrigno.

Petitioner contends that two individuals were turned away without being offered the opportunity to vote by affidavit. One is Mr. Frantz Baron, the challenge voter who neglected to include his address, as discussed above. Thus, contrary to petitioner's allegation, Mr. Baron did fill out an affidavit, and his challenge vote was accepted, opened and included in petitioner's vote total. According to petitioner, the other individual is James Vandezande. By letter dated May 28, 2004, Mr. Vandezande sent petitioner a copy of his letter to the district recounting his experience on election day. Mr. Vandezande states he was prevented from voting but was not offered the opportunity to submit a paper "challenge" ballot. However, there is nothing in his letter indicating for whom he would have voted had he been given the opportunity to do so.

In her reply, petitioner includes an affidavit from Mr. Vandezande stating that had he been able to vote, he would have voted for petitioner. However, the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of General, 43 id . 146, Decision No. 14,948). Petitioner failed to include Mr. Vandezande's affidavit with her petition even though she was aware of his earlier letter. Therefore, while I have reviewed petitioner's reply, I have not considered those portions, including the affidavit, containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

Petitioner asserts that election workers failed to properly monitor and account for votes because the poll lists at two of the seven polling venues did not match the machine counts. She contends that at the Clara H. Carlson School ("Carlson"), the machine total was one greater than the poll list, and at the Gotham Avenue School ( "Gotham"), the machine total was one less than the poll list.

In its answer, respondent states that three days after the election, the Carlson chairperson and a clerk checked each buff card signed by a voter on election day. They found that two buff cards with the same voter last name had been given the same poll list number. Respondent posits that this explains why the machine total was one greater that the poll list.

Although respondent also reviewed all the buff cards at Gotham, respondent admits that it could not find the cause of the discrepancy there. Respondent speculates that a potential voter signed a buff card, had his or her name placed on the poll list, received a number, and simply left without voting. In any event, it is not unusual for discrepancies to exist between the machine count and the poll list at the conclusion of an election (see, e.g., Appeals of Laskas-Gillespie and Warshaw, supra; Appeal of Diamond, 39 Ed Dept Rep 541, Decision No. 14,304), and petitioner has failed to meet her burden of proving that any alleged irregularity regarding the poll list actually occurred, much less that it affected the outcome of the election.

Finally, petitioner contends that several nonresidents were allowed to vote. She claims that three adult children of another member of respondent board, Deanna Doreson, who allegedly supported Ms. Ferrigno, used Ms. Doreson's address on the poll list in order to vote in the election even though they purportedly reside outside the district. Petitioner also claims that three other individuals who purportedly reside outside the district improperly voted in the election.

I decline to address with specificity the allegations regarding each individual because there is no indication that petitioner made any timely challenges with respect to the qualifications of any voters. A qualified voter may challenge, either prior to or at the district election, the qualifications of any other voter (Education Law ��2015[3] and 2019). Challenges to the qualifications of a voter must be made no later than the time the voter appears at the polls to vote (Appeal of Brannon, supra; Appeal of Crowley, et al., 39 Ed Dept Rep 665, Decision No. 14,345; Appeal of Fraser-McBride, et al., 36 id. 488, Decision No. 13,783). A person who has the right to challenge a voter and permits him to vote without such challenge is not allowed to object to such voter's participation (Appeal of Crowley, et al., supra; Appeal of Fraser-McBride, supra ). Accordingly, petitioner's failure to timely object to the qualifications of any voters in a timely manner requires dismissal of these claims.