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Decision No. 16,056

Appeal of BARRY RINGELHEIM from action of the Board of Education of the Lawrence Union Free School District and Board Members Abel Feldhamer and Uri Kaufman regarding a school board election.

Decision No. 16,056

(April 21, 2010)

Minerva & D’Agostino, P.C., attorneys for respondent board, Roslyn Z. Roth, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals actions of the Board of Education of the Lawrence Union Free School District (“board” or "respondent board") relating to the May 19, 2009 election of Abel Feldhamer (“Feldhamer”) and Uri Kaufman (“Kaufman”) to the board.  The appeal must be dismissed.

The election was conducted for the purpose of filling two seats on the board.  Kaufman, an incumbent board member, and petitioner sought Kaufman’s seat. Feldhamer sought departing board member Michael Hatten’s seat, and John Kinder ran a write-in campaign for that seat.  The election was conducted at five polling places throughout the district.  Petitioner lost to Kaufman by 179 votes, and Kinder received 1,240 less votes than Feldhamer.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 23, 2009.

Petitioner alleges several election irregularities including, among other things, that no assistance was provided to voters when requested, that poll workers were not trained on assisting voters with write-in candidates, that antiquated and improperly maintained voting machines were used, and that machine breakdowns denied people the right to vote.  Petitioner also alleges that the absentee ballots were not opened in his presence, that a board trustee spent an inordinate amount of time at the high school and was harassing poll workers, and that the district clerk inappropriately ridiculed voters.  Petitioner requests that I annul the results of the May 19, 2009 school board election and order a new election. 

Respondent board denies that any irregularities or improprieties occurred in connection with the May 19, 2009 vote, and alleges that petitioner has failed to demonstrate that the outcome of the vote was affected and failed to join the district clerk as a necessary party.

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Petitioner requests that the results of the election be annulled and a new election held.  He seeks no specific relief against the district clerk.  Therefore, the district clerk is not a necessary party to this appeal.

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, et al., 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 (Appeal of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, aff'd sub nom, Capobianco v. Ambach, et al., 112 AD2d 640).

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 numerous irregularities regarding the conduct of the election.  Petitioner provides 76 affidavits of district residents who either had difficulty voting, were unable to properly cast their vote, did not vote due to various difficulties or observed others encountering such difficulties.

Respondent board denies petitioner’s allegations.  It argues that although there was a heavy voter turnout, the machines were in good working condition and were properly certified by the Board of Elections.  The board contends that although there were times during the election when machines were inoperable, at no time during the election was a site closed to voters as paper ballots were available.  In addition, the district provided instructions in each voting machine on how to complete a write-in vote.

Petitioner also contends that the absentee ballots were not opened in his presence.  Respondent board maintains that they were opened in clear view.  Moreover, there is no requirement that absentee ballots be opened in the presence of the candidate or their representatives (seeAppeal of Georges, 45 Ed Dept Rep 453, Decision No. 15,380). 

On the record before me, petitioner has failed to rebut the presumption of regularity in the conduct of the election.  The final vote results indicate that petitioner lost by 179 votes, and John Kinder received 1,240 less votes than Feldhamer.  While petitioner alleges a number of irregularities he has failed to demonstrate that any of the alleged irregularities affected the outcome, vitiated the electoral process or demonstrated laxity in adherence to the Education Law.