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Decision No. 15,319

Appeal of JAMES G. KUDLACK from action of the Board of Education of the Greenville Central School District regarding a referendum.

Decision No. 15,319

(October 26, 2005)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton and Michele V. Handzel, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges actions of the Board of Education of the Greenville Central School District ("respondent") in connection with a referendum held on January 18, 2005. The appeal must be dismissed.

On January 18, 2005, a referendum was held to determine whether respondent should purchase a certain piece of real property using the district's surplus funds. District voters approved the purchase and this appeal ensued.

Petitioner alleges irregularities at the polls, including improperly marked and obstructed access, confusing and obstructed signage and a lack of access for disabled persons. Petitioner alleges that respondent violated his rights and the rights of other disabled persons. Petitioner also alleges that respondent's handling of its surplus funds "injured" him and denied voters meaningful choices. Petitioner requests that I nullify the January 18, 2005 referendum and order respondent to use its surplus funds to reduce property taxes.

Respondent contends that petitioner fails to demonstrate any wrong-doing, and fails to set forth a clear and concise statement of his claim as required by �275.10 of the Commissioner's regulations. Respondent also argues that petitioner fails to establish that the alleged irregularities actually affected the outcome of the referendum. Finally, respondent contends that petitioner fails to properly plead a class action and lacks standing to advocate for disabled voters.

Initially, I must address petitioner's reply. 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 Kirschenbaum , 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). I find that petitioner has failed to meet his burden of proof with respect to his allegation that respondent mismanaged any surplus funds because the petition consists of nothing more than unclear, conclusory, and speculative allegations, unsupported by any evidence.

To invalidate the results of an election, petitioner must establish not only that irregularities occurred, but also that the irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Meyer, et al., 38 Ed Dept Rep 285, Decision No. 14,034; Appeal of Santicola, 36 id. 416, Decision No. 13,765), were so pervasive that they vitiated the electoral process (Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162; Matter of Gilbert, 20 id. 174, Decision No. 10,366), 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, affdsubnom, Capobianco v. Ambach and Bd. of Educ. of Glen Cove City School District, 112 AD2d 640). Implicit in these decisions is the 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 Goldman, 35 Ed Dept Rep 126, Decision No. 13,487; Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162).

Petitioner alleges that the referendum should be set aside because respondent permitted school children to board buses that blocked the polls and because voters were confused by an "Area Closed" sign posted at the entrance to respondent's parking lot. Petitioner also alleges that a temporary sign used by respondent to direct voters to the polls was obscured.

Petitioner does not provide any affidavits from voters (disabled or otherwise) who allege that they were prevented from voting due to the alleged irregularities and, in fact, petitioner admits that he was able to cast his ballot. Mere speculation as to the effect of alleged irregularities is insufficient to annul the results of an election (Appeal of Gorman, 44 Ed Dept Rep ___, Decision No. 15,222). On the record before me, I therefore find that petitioner has failed to show that any alleged irregularities actually affected the outcome of the election, vitiated the electoral process or demonstrated a clear and convincing picture of informality to the point of laxity.

In light of this determination, I need not address the parties' remaining contentions.