Appeal of ROCCO N. LANZILOTTA from action of the Board of Education of the Westbury Union Free School District, Laura Pierce, Adelaide Brinson and Stan J. Ercolano regarding an election.

Decision No. 15,905

(March 26, 2009)

Bondi & Iovino, attorneys for petitioner, Anthony F. Iovino, Esq., of counsel

Jaspan Schlesinger Hoffman LLP, attorneys for respondent Board of Education of the Westbury Union Free School District, Lawrence J. Tenenbaum, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals certain actions of the Board of Education of the Westbury Union Free School District (“respondent board”) in the conduct of the district’s school board election held on May 20, 2008 (“the election”).[1]  The appeal must be sustained.

The election was conducted at four polling places throughout the district.  Petitioner and the three individually-named respondents ran for two open positions as board trustees.  Respondents Laura Pierce and Adelaide Brinson (“Brinson”) received the highest vote totals of 1,091 and 961, respectively, and were elected.  Petitioner received 10 fewer votes than Brinson.  This appeal ensued.   Petitioner’s request for interim relief was denied on June 23, 2008.

Petitioner seeks to set aside the results of the school board election.  He alleges that there were several irregularities including, among other things that:  there was an insufficient number of election inspectors at one polling site; the number of signatures in the registrant books is fewer than the number of votes cast; and certain absentee ballots were not counted in public.

Respondent board asserts that the petition fails to state a claim upon which relief can be granted, that the election was properly conducted and that petitioner fails to set forth sufficient facts to justify overturning the

election.  Respondent board also objects to alleged additional assertions in petitioner’s memorandum of law.

Initially, I must address a procedural issue. Respondent board submits that petitioner’s memorandum of law contains new allegations which I should not consider.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542).  Specifically, respondent contends that petitioner’s memorandum of law contains new allegations that the district maintained only one election inspector at the Park Avenue polling place.  I disagree.  The petition’s supporting affidavits contained statements regarding the number of election inspectors at that polling place (see Affidavit of Masiello, paragraph 12 [Exhibit C to the Petition] and Affidavit of Kirton, paragraph 3 [Exhibit F to the Petition]).  I therefore find no merit to respondent board’s contention that this issue was impermissibly raised for the first time in petitioner’s memorandum of law.  Accordingly, I will consider the arguments set forth in the memorandum of law.

To the extent petitioner relies on authorities under the Election Law, such reliance is misplaced.  The Election Law does not govern the conduct of school district elections (Election Law §1-102; Appeal of Thomas, 47 Ed Dept Rep 442, Decision No. 15,748; Appeal of Georges, 45 id. 453, Decision No. 15,380; Appeal of Donnelly, 33 id. 362, Decision No. 13,079).

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, et al. v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Georges, 45 Ed Dept Rep 453, Decision No. 15,380), were so pervasive that they vitiated the electoral process (Appeal of Georges, 45 Ed Dept Rep 453, Decision No. 15,380; Appeal of Brannon, 42 id. 220, Decision No. 14,830; Appeals of Laskas-Gillespie and Warshaw, 40 id. 568, Decision No. 14,559), 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; Appeal of Levine, 24 id. 172, Decision No. 11,356, affdsubnom; Capobianco v. Ambach, et al., 112 AD2d 640).  Implicit in these decisions is the 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 Georges, 45 Ed Dept Rep 453, Decision No. 15,380; Appeal of Collins, 39 id. 226, Decision No. 14,223; Appeal of Roberts, 33 id. 601, Decision No. 13,162).

In addition, 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).

Petitioner raises numerous alleged irregularities in the conduct of the election.  He first contends that respondent board failed to appoint the requisite number of election inspectors to the Park Avenue polling place.  Education Law §2025(3)(b) requires that two election inspectors be appointed for each voting machine.  The Park Avenue polling place had two voting machines, requiring the appointment of four election inspectors. Petitioner submits, and respondent board does not refute, that after one election inspector was removed by the district while it investigated an allegation of wrongdoing, there was only one election inspector present at that polling place.  Accordingly, I find that respondent board violated Education Law §2025(3)(b).   

Petitioner also contends that the absentee ballots at the Drexel Avenue polling place were not opened in public.  Respondent submits that the absentee ballots were “opened in the presence of two election inspectors, consistent with the provisions of Education Law §2018-a(10)” (Answer, paragraph 33).  While Education Law §2018-a(10) requires the election inspectors to examine and count the absentee ballots after the polls close, Education Law §2018-a(11) provides that, while election inspectors are examining absentee ballots, “any qualified voter present in the polling place may object to the voting of the ballot contained in any envelope” upon certain specified grounds.  This necessitates the opening of the ballots in public (Appeal of Pappas, 38 Ed Dept Rep 582, Decision No. 14,098).  Accordingly, with respect to the Drexel Avenue polling place, I find that respondent board did not comply with Education Law §2018-a(11).  

The record further indicates that there may have been paper ballots that were not included in the final results for the election.  Petitioner submitted an affidavit indicating that at least one individual may have voted by paper ballot (Affidavit of DaRocha, paragraphs 3 and 11 [Exhibit I to the Petition]). In its answer, respondent board suggests that paper ballots were in fact used (Answer, paragraph 54). And finally, the statement of canvass for the Drexel Avenue polling place indicates that there were 25 paper ballots cast.  However, results from paper ballots are inexplicitly not reflected in the district’s election results page. 

Petitioner also asserts that there is a discrepancy between the number of votes cast and the number of signatures in the registrant books.  Respondent board concedes that there is a discrepancy, but disagrees with the extent of the discrepancy.  Petitioner reviewed the registrant books and submits that there were 54 more votes cast than signatures contained in the registrant books.  Respondent board admits that it performed two similar reviews that indicated a discrepancy of either 13 or 17, both which exceed the margin of votes by which petitioner lost the election. 

Respondent board relies on prior decisions in which I noted that it is not unusual for discrepancies to exist between the machine count and the sign-in sheets at the conclusion of an election and that such a discrepancy does not necessarily require the invalidation of an election.  In this instance, however, as discussed above, the election was tainted by more than the existence of the discrepancy.  Moreover, in addition to an undisputed discrepancy, petitioner submitted an affidavit from another candidate stating that he observed an individual voting twice at the Park Avenue polling place (Affidavit of Ercolano, paragraph 16 [Exhibit E to the Petition]. Petitioner also submitted affidavits characterizing the Park Avenue polling place as chaotic and further averring alleged improper conduct on the part of the election inspectors.  In its answer, respondent board, generally denies knowledge and information sufficient to form a belief regarding the alleged conduct of its election inspectors, but acknowledged that one of its election inspectors was removed during an investigation of alleged wrongdoing. Respondent board did not provide any information regarding the outcome of its investigation.  Also, conspicuously absent from the record is an affidavit from an election inspector to counter the allegations raised by the affidavits submitted by petitioner.    

On this record, I find that petitioner has met his burden and established that the errors in the conduct of the election were of such nature and scope as to vitiate the fundamental fairness of the election.

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the results of the school board election conducted by respondent board on May 20, 2008, are hereby annulled; and

IT IS FURTHER ORDERED that respondent board proceed to call a meeting of the district for the purpose of electing individuals to fill the board vacancies presented to the voters on May 20, 2008.