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Decision No. 15,739

Appeal of SEAN CRAWFORD, RICKY SANCHEZ, BEVERLY BROOKS, MARYFRANCES ZEAYAS and HECTOR TORRES from action of the Haverstraw-Stony Point Central School District regarding a school district budget.

Decision No. 15,739

(April 8, 2008)

Feerick Lynch MacCartney, PLLC, attorneys for petitioners, Mary E. Marzolla, Esq., of counsel

Whiteman Osterman & Hanna, LLP, attorneys for respondent, Beth A. Bourassa, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal actions of the Board of Education of the Haverstraw-Stony Point Central School District (“respondent”) regarding the 2007-2008 school district budget.  The appeal must be dismissed.

On May 15, 2007, the district’s proposed budget was passed by a margin of 161 votes, 2,464 to 2,303.

Petitioners claim that respondent misinformed district residents about the consequences of a budget defeat and intimidated voters.  Specifically, petitioners claim that respondent used district funds to disseminate false and misleading information about the contingency budget, which was “part of a pattern, practice and policy of misinformation, deceit and other wrongful conduct by [respondent].”  Petitioners also contend that respondent misinformed and mislead district residents by indicating that the proposed budget had a zero tax levy increase and not disclosing that the proposed budget would result in a significant tax increase for most homeowners.

Petitioners also contend that respondent engaged in actions which were designed to improperly exhort the electorate to approve the proposed budget, such as providing certain information to students about the impact of a defeated budget; permitting district employees to wear red shirts on the day of the budget vote to indicate support for the proposed budget; encouraging the placement of red signs around the district, including entrances to polling places, urging voters to approve the proposed budget; and allowing other signs opposing the budget to be  removed by a district employee.

Petitioners claim that because of respondent’s alleged misconduct, a sufficient number of district voters who would have voted against the proposed budget were mislead to vote for the proposed budget.  Petitioners allege that respondent’s misconduct affected the outcome of the election, was so pervasive that it violated the electoral process and demonstrated informality to the point of laxity in adherence to the Education Law.  Petitioners request that I declare the May 15, 2007 budget vote null and void, that I direct respondent to adopt an austerity budget or hold a new budget vote, and that I require respondent to cease partisan activities at public expense.

Respondent contends that the petition fails to state a claim upon which relief may be granted.  Respondent argues that it did not attempt to mislead or misinform voters.  Respondent also denied engaging in, encouraging or knowingly permitting improper electioneering or budget advocacy.  Respondent also objects to petitioners’ reply because it was not verified.

Petitioners’ reply was not verified in violation of §275.5 of the Commissioner’s regulations (Appeal of Jacoby, 47 Ed Dept Rep ___, Decision No. 15,710; Appeal of McColgan, et al., 47 id. 132, Decision No. 15,650;  Appeal of D.H., 47 id. 77, Decision No. 15,631).  Therefore, I have not considered petitioners’ reply.

To invalidate the results of a school district election or vote, 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 Santicola, 36 Ed Dept Rep 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 (Capobianco v. Ambach, et al., 112 AD2d 640; Matter of Levine, 24 Ed Dept Rep 172, Decision No. 11,356).  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 Goldman, 35 Ed Dept Rep 126, Decision No. 13,487; Appeal of Roberts, 33 id. 601, Decision No. 13,162).

Furthermore, 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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

Respondent’s budget passed by a margin of 161 votes.  Petitioners present no evidence that any actions by respondent affected the outcome of the vote or that the alleged irregularities were so pervasive that they vitiated the electoral process or demonstrate a clear and convincing picture of informality to the point of laxity.  Petitioners do not provide any affidavits from voters who allege that they would have voted differently but for the alleged misrepresentations, irregularities or exhortation.  In fact, according to respondent, only three of the five petitioners voted on the budget.  Mere speculation as to the effect of alleged irregularities is insufficient to annul election results (Appeal of Gorman, 44 Ed Dept Rep 435, Decision No. 15,222).

In light of this disposition, I will not address the parties’ remaining contentions.