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Decision No. 15,920

Appeal of ROBERTA A. CASWELL from action of the Board of Education of the Panama Central School District regarding a school board election, a board member appointment and a vote on a capital project, and application for removal of the Board of Education.

Decision No. 15,920

(May 22, 2009)

Lundberg & Gustafson, LLP, attorneys for respondent, Myra V. Blasius, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges actions of the Board of Education of the Panama Central School District (“respondent”) regarding a school board election, the appointment of a board member and vote on a capital project, and seeks removal of the members of the board.  The appeal must be dismissed and the application must be denied.

On May 20, 2008, respondent held its annual meeting and election for approval of the school district budget and the election of three board members.  Petitioner ran for the board but was not elected.  On June 24, 2008, another vote was held on a proposed facilities project, which was approved. 

On August 11, 2008, respondent appointed Carrie Munsee to fill a board position vacated on May 19, 2008.  Petitioner had sought that position and had submitted a petition signed by 86 district residents in support of her appointment. 

This appeal ensued.  Petitioner’s request for interim relief was denied on September 5, 2008. 

Petitioner alleges that respondent violated various provisions of the Education Law with regard to the May 20 school board election and the June 24, 2008 budget vote.  Petitioner also asserts that the board member appointment was done in executive session.  She requests that the appointment of Carrie Munsee be annulled, the approval of the facilities project be overturned and the members of the board be removed.

Respondent asserts that at all times the district acted in good faith and within the scope of the Education Law.  Respondent also argues that certain claims should be dismissed for mootness, lack of jurisdiction and failure to join necessary parties.

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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  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. 

The appeal must be dismissed to the extent that it seeks removal of individual board members.  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 joined as such (Appeal of Smith, 45 Ed Dept Rep 557, Decision No. 15,414; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  Joinder in a removal action requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense  (Appeal of Smith, 45 Ed Dept Rep 557, Decision No. 15,414; Appeal of D.B., 47 id. 336, Decision No. 15,716).

Petitioner has failed to name the individual board members as respondents in either the petition or the notice of petition and has not personally served any of the board members.  Moreover, the notice of petition does not state that the removal of any person is sought, as required by277.1 of the Commissioner’s regulations.  Thus, to the extent petitioner seeks the removal of individual board members, the appeal must be dismissed for failure to join necessary parties.

To the extent petitioner seeks to overturn the appointment of Carrie Munsee to the board, the appeal must also be dismissed for failure to join her as a necessary party.  Petitioner challenges the process by which Ms. Munsee was appointed to the board and, if overturned, would adversely affect Ms. Munsee.  Accordingly, Ms. Munsee is a necessary party and petitioner’s failure to join her as such requires dismissal of this claim.

Further, petitioner’s allegations concerning the use of an executive session are within the jurisdiction of the Supreme Court and are not the proper subject of an Education Law §310 appeal (Appeal of Taber, 42 Ed Dept Rep 251, Decision No. 14,843; Appeal of Gillen, 33 id. 690, Decision No. 13,199).

Petitioner’s remaining claims involve the June 24, 2008 facilities vote.  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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477). 

Petitioner alleges that the superintendent used district materials and resources to distribute literature encouraging a favorable vote on the project.  Although a board of education may provide informational material to the voters concerning a proposed budget or proposition (Education Law §1716), the Court of Appeals held in Phillips v. Maurer (67 NY2d 672) that school district funds may not be used to exhort the electorate to support a particular position.  According to the superintendent, she prepared a document entitled “Correcting Information” in response to a “fact sheet” distributed by a group who refers to itself as “Concerned Taxpayers.”  She states that she prepared the document at home and distributed it to a “small number of interested individuals.”  The superintendent did not prepare this material with district resources.  Further, this document, as provided by petitioner, merely provided facts and did not advocate for a particular vote for the June 24, 2008 election. 

Petitioner also claims that grade school children were directed by teachers and staff to encourage their parents to vote for the project.  In support of this allegation, petitioner provides an unsworn statement from a parent, which is devoid of names, dates or other specifics of the alleged incidents.  Finally, petitioner claims that the district clerk stated her point of view to people in line to vote.  In an affidavit, the district clerk denies such accusations.  Thus, petitioner has failed to meet her burden of proof with respect to her claims of improper advocacy. 

With respect to the conduct of the vote, petitioner claims that individuals with disabilities were not assisted in voting.  The district clerk who was present throughout the voting attested that two district residents who required mobility assistance were able to utilize the voting machines after declining assistance and that paper ballots were available in case individuals were not able to use the machines.  Petitioner fails to demonstrate that any district resident was prevented from casting a vote in the election due to an inability to access the voting machines.

Petitioner also asserts that residents were improperly turned away from the polls.  Respondent provides affidavits which demonstrate that “at most six people arrived after 8:00 p.m.” and were turned away.  Qualified voters present at or before the polls close must be permitted to vote (Appeal of Fugle, 32 Ed Dept Rep 480, Decision No. 12,892).  Petitioner has not demonstrated through competent evidence that anyone present in line prior to the designated closure time were not permitted to vote.

Petitioner also claims that the polling hours were insufficient.  The district held the vote on June 24, 2008 from 7:00 a.m. to 9:00 a.m. and 2:00 p.m. to 8:00 p.m.  Petitioner claims that this did not give voters enough time to vote, and that more machines should have been made available as it was known in the community that the subject capital project vote was divisive.  Respondent states that in past elections, one voting machine was adequate to accommodate the voter turnout. 

Petitioner also claims that four of the nine poll inspectors were directly employed by the school.  Education Law §2025, which authorizes the appointment of election inspectors, does not prohibit district employees, school board members, relatives of board members or candidates from serving as election inspectors (Appeal of Marchesani, 44 Ed Dept Rep 460, Decision No. 15,232; Appeal of Bleier, 32 id. 63, Decision No. 12,759; Appeal of Crowley et al., 39 id. 665, Decision No. 14,345).  As such, the mere service of these employees as poll inspectors without more, is not a reason to invalidate the election.

To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but that the irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 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 Laurie, 42 Ed Dept Rep 313, Decision No. 14,867; Appeal of Mead, 42 id. 359, Decision No. 14,881) 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, aff'd sub nom, Capobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 112 AD2d 640).

The final vote results were 445 votes in favor of the facilities project and 427 against. Petitioner has failed to demonstrate that any alleged irregularities affected the outcome, vitiated the electoral process or demonstrated laxity in adherence to the Education Law.  Accordingly, there is no basis for me to overturn the results of the June 2008 vote.

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