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Decision No. 16,500


 Appeal of DONNA R. PASQUINI from action of the Board of Education of the Ravena-Coeymans-Selkirk Central School District regarding a school district election and budget vote.

Decision No. 16,500

(July 11, 2013)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals from action of the Board of Education of the Ravena-Coeymans-Selkirk Central School District (“respondent”) regarding the district’s May 15, 2012 election and budget vote. The appeal must be dismissed.

On May 15, 2012, respondent held its annual election and budget vote. The budget for the 2012-2013 school year passed by 195 votes and a bus proposition passed by 107votes. Alice Whalen, Howard Engel, Edward Reville and Judith Sylvester were elected to the board, receiving 2,216votes (Whalen), 2,206 votes (Engel), 1,831 votes (Reville)and 1,600 votes (Sylvester). The difference in votes between Sylvester and the next highest candidate was 22votes.

Petitioner alleges a number of irregularities in the conduct of the election including: students wearing “Vote Yes for RCS” t-shirts near the polls, voters who did not sign a registration book prior to voting, and voters who did not receive “ballot tags” prior to voting. Petitioner also complains that she was not familiar with the election inspectors, that the head inspector was not present at all times and that officials were not certain who was in charge of the voting. Petitioner asserts that the number of “Yes” votes canvassed for the budget on election night changed by26 votes following a recount. Finally, petitioner alleges generally that the conduct of the vote violated New York State election laws. Petitioner requests that I conduct an investigation and declare the results of the vote null and void.

Respondent contends that petitioner has failed to demonstrate that any irregularities occurred in the conduct of the vote or to establish that, even if there were irregularities, the outcome of the vote was affected.

Respondent also maintains that the appeal must be dismissed for failure to join necessary parties.

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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). Joinder 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 Murray, 48 Ed Dept Rep 517, Decision No.15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917;Appeal of Williams, 48 id. 343, Decision No. 15,879).Section 275.8(d) of the Commissioner’s regulations provides in pertinent part: “If an appeal involves the validity of a school district meeting or election ... a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent” (emphasis added)(see Appeal of Schultz, 48 Ed Dept Rep 70, Decision No. 15,796;Appeal of Duffy, 47 id. 86, Decision No. 15,634).

Petitioner did not serve a copy of the notice of petition and petition on Whalen, Engel, Reville or Sylvester - the successful candidates - nor did she name them as respondents in the appeal. Because the rights of the successful candidates would be affected should petitioner prevail, they are necessary parties to the appeal. Petitioner’s failure to join them as respondents requires dismissal of petitioner’s challenge to the May 15,2012 election of board members, though not to petitioner’s challenge to the budget vote.

The appeal must also be dismissed on the merits. To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also a probability 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 Caswell, 48 Ed Dept Rep 472, Decision No.15,920; Appeal of Lanzilotta, 48 id. 428, Decision No.15,905), were so pervasive that they vitiated the electoral process (Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Georges, 45 id. 453, Decision No.15,380), 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, affd sub nom Capobianco v. Ambach, etal., 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 Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748; Appeal of Georges, 45 id. 453, Decision No. 15,380).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48id. 348, Decision No. 15,882).

Petitioner alleges that two students in the school where the polling place was located wore t-shirts that stated “Vote Yes for RCS” and “Vote Yes to Save RCS,” and that, during the course of the school day, these students “would have to walk by within 100 feet” of the polling place. Education Law §2031-a prohibits electioneering within 100 feet of a polling place. However, although petitioner speculates that such students might have walked by the polling place within that distance during the course of the day, she provides no proof that this actually occurred.

Similarly, petitioner submits two affidavits wherein the affiants describe seeing individuals with pro-budget t-shirts “inside the school” or that they “had to walkthrough [students in the hallway wearing pro-budget t-shirts] to get to the voting area”, yet the affidavits do not provide evidence that such individuals and students were within 100 feet of the polling place. Indeed, the district clerk, who was in charge of the election, avers that during the voting, no one - including petitioner -reported any alleged improper activity at the polling place. Two affidavits also refer to adults who were in the polling place to vote wearing pro-budget t-shirts. Petitioner offers no evidence that such activity affected the outcome of the vote. She submits no affidavit from any voter indicating that his or her vote was affected by such activity. Even if the presence of such individuals was improper, given the constitutional implications regarding free expression, I need not decide that issue here.

To the extent that petitioner is asserting that respondent engaged in impermissible partisan activity because students and individuals allegedly wore pro- budget t-shirts near the polling place and a “Vote Yes” sign was posted on a wall, petitioner’s claim must fail. A board of education may use public resources to present objective, factual information to the voters concerning a vote or election (Education Law §1716; Phillips v. Maurer, et al.,67 NY2d 672; Appeal of Caswell, 48 Ed Dept Rep 472,Decision No. 15,920; Appeal of Wallace, 46 id. 347,Decision No. 15,529). However, while a board of education may disseminate information “reasonably necessary” to educate and inform voters, its use of district resources to distribute materials designed to “exhort the electorate to cast their ballots in support of a particular position advocated by the board” violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Maurer, et al., 67 NY2d 672;Stern, et al. v. Kramarsky, et al., 84 Misc 2d 447; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Wallace, 46 id. 347, Decision No. 15,529).

It is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election (Appeal of Wallace,46 Ed Dept Rep 347, Decision No. 15,529; Appeal of Hagerand Scheuerman, 43 id. 363, Decision No. 15,019). Even indirect support, such as a school board giving a PTAaccess to its established channels of communication to parents to espouse a partisan position that the board itself was prohibited from doing directly, has been deemed improper (Stern, et al. v. Kramarsky, et al., 84 Misc 2d447; Appeal of Wallace, 46 Ed Dept Rep 347, Decision No.15,529; Appeal of Hager and Scheuerman, 43 id. 363,Decision No. 15,019).

Petitioner has failed to establish that respondent was involved in impermissible partisan activity. There is nothing in the record indicating that school district facilities or resources were used to create any “Vote Yes” t-shirts or that district employees encouraged or supported students wearing them. It appears from the record that students were wearing the t-shirts as a means of personal expression and there is no evidence that the shirts were produced or sanctioned by the board. Respondent also denies petitioner’s allegation regarding the presence of a “Vote Yes” sign, and petitioner submits no reply in rebuttal. Moreover, petitioner has not shown that the alleged activity, even had it occurred, affected the outcome of the election or budget vote. Thus, petitioner’s claim of improper partisan activity by respondent is not supported by the record and provides no basis on which to nullify the election or budget vote.

Petitioner’s claims regarding other alleged improprieties in the voting process are also not substantiated on this record. Although petitioner asserts that there were election inspectors at the polling place whom she had not seen before, she asserts no legal prohibition of any such individuals from serving as inspectors. She also asserts that William Schwartz was the “Head Election Inspector,” but was not present when she was at the polls. According to respondent, however, Mr. Schwartz acted as chairperson and properly fulfilled his responsibilities in canvassing the vote. Petitioner submits no reply in rebuttal.

Petitioner alleges that she was told that some individuals voted “without signing the registration book. “However, respondent states that it has not adopted personal registration in the district. Thus, any qualified voter may cast a vote (see Education Law §2012). Although any qualified voter may challenge another individual at the polls as being unqualified to vote, petitioner presents no evidence that any challenges were made at the polls. Nor has she demonstrated that, in fact, any unqualified individual voted. Indeed, each of the six affidavits submitted by petitioner indicates that the voter checked in with someone at the polls, was not unqualified to vote and cast a vote in the election and budget vote. Moreover, even if petitioner’s allegation were true, she has not established that a sufficient number of unqualified voters cast votes – indeed she presents no such evidence – so as to affect the outcome of the election.

Petitioner also challenges the manner in which election inspectors distributed “ballot tags” to monitor the voting process. According to the record, each voter was given a “ballot tag” prior to getting in line to vote. Petitioner maintains that certain voters were not given “ballot tags” and were, therefore, permitted to vote more than once. There is no requirement in Education Law or Commission’s regulations that respondent provide “ballot tags” at a school district election, and on this record, I cannot conclude that respondent acted improperly in this regard. In addition, petitioner offers no proof that anyone voted twice. Her allegation is merely speculative and conclusory and, thus, cannot be the basis for overturning the election (Appeal of Crawford, et al., 47 Ed Dep Rep 413, Decision No. 15,739; Appeal of Kudlack, 45 id. 272, Appeal No. 15,319; Appeals of Heizman and Boder, 33 id. 328, Decision No. 13,064).

Petitioner objects to the recount of absentee ballots on May 16, 2012 which resulted in a reduction of the number of “Yes” votes recorded for the budget by 26 votes. She acknowledges that the number of “No” votes remained the same. Respondent admits that the absentee ballots were recounted to ensure they were properly canvassed the previous night and that the numbers were revised to reflect proper inclusion of those ballots. Because the budget passed by 195 votes, irregularities in the recount, if any, would not have affected the results of the vote. Moreover, petitioner fails to establish, or even allege, that theabsentee ballots were subject to tampering or otherwise improperly counted.

Petitioner also alleges that the conduct of the election and budget vote was “against New York State election laws.” However, except in limited circumstances not applicable here, the Election Law does not govern the conduct of school district elections (Election Law §1-102;Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No.15,905; Appeal of Georges, 45 id. 453, Decision No. 15,380;Appeal of Brown, et al., 43 id. 231, Decision No. 14,980).

Finally, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857). As noted above, petitioner has the burden of proving facts entitling her to the relief sought.

Upon review of the record before me, I conclude that petitioner has failed to meet her burden of proof and find no basis upon which to nullify the results of respondent’s May 15, 2012 election and budget vote. In light of this disposition, I need not address the parties’ remaining contentions. Although the appeal must be dismissed, I remind respondent to ensure that all annual elections and budget votes are conducted in a manner that avoids even the appearance of impropriety so as to preclude, to the extent possible, voter confusion and related controversy.

Although the record does include any evidence that any voter voted more than once, I take administrative notice that, in Appeal of Toussaint, 52 Ed Dept Rep, Decision No. 16,494, respondent had an independent review conducted that showed 48 more votes were cast on the machines than were signatures in the poll book. However, even assuming arguendo, that this reflects improper activity, the 48 vote discrepancy would not affect the outcome of the budget vote, the only remaining issue herein.