Appeal of ANDREW ZLOTNICK and REBEKAH HARTMAN from action of the Board of Education of the Berlin Central School District and Frank Zwack, Jr., Jim Willis and Rachel Finney, regarding a district election.

Decision No. 16,589

(February 13, 2014)

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

KING, JR., Commissioner.--Petitioners, who are unsuccessful candidates for election to the Board of Education of the Berlin Central School District ("respondent board" or "board"), challenge the results of the district election held on May 17, 2011.  The three successful candidates, Frank Zwack, Jr., Jim Willis and Rachel Finney, are also named as respondents.  The appeal must be dismissed.

The May 17, 2011 election included a school budget proposition and the selection of three school board members to fill specific seats on the board.  Petitioner Zlotnick and respondent Finney vied for one board vacancy for a one year term, and respondents Zwack and Willis each sought election to separate seats for three year terms each.  Respondent Finney received 548 votes to petitioner Zlotnick's 273 votes; respondent Zwack received 503 votes to 110 write-in votes for petitioner Hartman; and respondent Willis received 603 votes to 16 write-in votes (11 for petitioner Hartman; one each for five other individuals, including petitioner Zlotnick).  Petitioners commenced this appeal on June 13, 2011.  On June 22, 2011, I denied petitioners' request for interim relief.

Petitioners allege that the nominating petitions for respondents Finney, Zwack and Willis contained an insufficient number of signatures and that petitioner Zlotnick was not given an opportunity to be present during a lottery drawing to determine placement of candidates on the ballot.  Petitioners also allege that a close friendship exists between the district clerk and respondent Zwack, which improperly influenced how Zwack and other candidates favored by Zwack were treated in submitting nominating petitions.  Petitioners further allege certain irregularities during the election, including that a defective voting machine misaligned candidates' names with their respective write-in slots and failed to properly record write-in votes, voting machines were not compliant with the Americans with Disabilities Act (“ADA”), ballot samples for a write-in candidate did not match the ballot appearance on the voting machines, and no clear instructions were provided for write-in voting.  Petitioners request that I direct that they be seated on the Board as the only "legally binding" candidates and that the individual with the highest number of write-in votes be seated in place of respondent Willis, or, in the alternative, that I order a new election.

Respondents contend the appeal should be dismissed on procedural grounds based on defective service of the petition and untimeliness.  Respondents also contend that the appeal be dismissed for petitioners' failure to meet their burden of proof.

Respondents have submitted a number of affidavits, including an affidavit from respondent Zwack, in support of their answer, and subsequently requested that I accept an amended affidavit of respondent Zwack.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  In this instance, the amended affidavit merely corrects a factual allegation in the original affidavit and does not raise new issues or introduce new exhibits.  Accordingly, I have accepted the amended affidavit.

Before addressing the merits I will consider respondents’ procedural defenses.  Section 275.8(a) of the Commissioner's regulations specifically states: “A copy of the petition, together with all of petitioner’s affidavits, exhibits and other supporting papers... shall be personally served upon each named respondent...”  Respondents allege that none of them were served with a complete copy of the petition.  Specifically, respondents allege that the petition served on respondent board did not include the caption and paragraphs one through seven; the petition served on respondents Zwack and Finney did not include the caption and paragraphs one through seven and 15 through 18; and the petition served on respondent Willis did not include page two of the Notice of Petition, the caption, and paragraphs one through seven.  Significantly, petitioners have failed to submit a reply to rebut respondents' allegations.  Petitioner’s failure to comply with the regulations of the Commissioner by failing to serve the complete petition on each respondent denied respondents a meaningful opportunity to respond to the contents therein and present a defense in this appeal (see Appeal of C.W., 53 Ed Dept Rep, Decision No. 16,564; Appeal of Students with Disabilities, 52 id., Decision No. 16,454; Appeal of Whittaker, 52 id., Decision No. 16,424).  Accordingly, the appeal must be dismissed.

Respondents also allege that the appeal is untimely to the extent that petitioners challenge the acceptance of nominating petitions.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The record indicates that the District Clerk accepted the candidates' nominating petitions on April 18, 2011 and placed the candidates' names on the ballot on April 19, 2011.  Petitioners, however, did not commence this appeal until June 13, 2011, which is more than 30 days from April 18 and 19, 2011, and do not offer any reason for the delay.  Accordingly, petitioners' claims concerning the nominating petitions and placement of the candidates' names on the ballot must be dismissed as untimely (Appeal of Grant, 42 Ed Dept Rep 184, Decision No. 14,816; Appeals of Campbell, et al., 41 id. 207, Decision No. 14,665; cf. Appeal of Leman and Roujansky, 32 id. 579, Decision No. 12,919).

Furthermore, to the extent that petitioners assert claims under the ADA, the appeal must be dismissed for lack of jurisdiction.  An appeal to the Commissioner is not the proper forum in which to raise alleged violations of the ADA (Appeal of the Board of Education of the City School District of the City of Rye, 53 Ed Dept Rep, Decision No. 16,513; Appeals of a Student Suspected of Having a Disability, 46 id. 539, Decision No. 15,588; Appeal of Mogel, 41 id. 127, Decision No. 14,636).

Even if the appeal were not dismissed on procedural grounds, it would 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, 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 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).  It is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Antaki and Mosman, 47 Ed Dept Rep 228, Decision No. 15,678; judgment granted dismissing petition, Antaki and Mosman v. Mills and Bd. of Educ., Pleasantville UFSD, Sup. Ct., Albany Co., [Platkin, J.], May 30, 2008, n.o.r.; Appeal of Marchesani, 44 id. 460, Decision No. 15,232).  Petitioners allege certain irregularities during the election, including that a defective voting machine misaligned candidates' names with their respective write-in slots and failed to properly record write-in votes, voting machines were not compliant with the ADA, ballot samples for a write-in candidate did not match the ballot appearance on the voting machines, and no clear instructions were provided for write-in voting.  Respondents submit affidavits from the District Clerk and respondent candidates disputing petitioners' allegations, and I note that petitioners have failed to submit a reply to rebut respondents' allegations.  Even if I were to accept that such irregularities occurred, petitioners' allegations are largely speculative and anecdotal in nature and fail to establish that they affected the results of the election, vitiated the electoral process, or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.  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., 48 id. 348, Decision No. 15,882).  Therefore, based on the record before me, the appeal must be dismissed for petitioners' failure to carry their burden of proof.

THE APPEAL IS DISMISSED.

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