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Decision No. 16,760

Appeal of REBECCA CHRISTNER and MARIANNE SERRATORE, from action of the Board of Education of the Pine Bush Central School District, Deborah June, as district clerk, Eric Meier and Cara Robertson, regarding a school district election.

Decision No. 16,760

(May 20, 2015)

Law Office of Jonathan A. Chase, attorneys for petitioners, Jonathan A Chase, Esq., of counsel

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent board and district clerk, Allison E. Smith, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners appeal the actions of the Board of Education of the Pine Bush Central School District (“board”), district clerk Deborah June (“June”) and successful board candidates Eric Meier (“Meier”) and Cara Robertson (“Robertson”), (collectively “respondents”) regarding the conduct of the district’s May 20, 2014 school board election.  The appeal must be dismissed.

At the May 20, 2014 election, respondent Meier, respondent Robertson, petitioner Christner (“Christner”) and petitioner Serratore (“Serratore”) ran for election to fill two vacancies on the board.  Meier and Robertson won the election with 1,234 and 1,082 votes, respectively.  Christner received 1,076 votes, and Serratore received 1,049 votes.  This appeal ensued. 

Petitioners allege that several election irregularities occurred during the election which requires annulment of the vote.  Specifically, petitioners allege violations of the Election Law because their poll watchers were prevented from witnessing voter signatures and credentials on the day of the election and were also prevented from witnessing the canvass of the voting machines and absentee ballots at the conclusion of the election.  Petitioners also contend that they were prevented from physically inspecting the voting machines thereafter by the board’s denial of their subsequent request under the Freedom of Information Law (“FOIL”).  Petitioners request that I annul the results of the May 20, 2014 school board election; order that the voting machines be opened and canvassed or re-canvassed and that absentee ballots and envelopes be inspected in the presence of all parties; and re-certify the results of the election.

Respondents deny that any irregularities or improprieties occurred in connection with the May 20, 2014 vote that warrant nullifying the election results.  Respondents allege that petitioners have failed to demonstrate that the outcome of the vote was affected by any irregularity.  Respondents contend that the petition fails to state a claim and that petitioners have failed to meet their burden of proof warranting the dismal of the appeal.

Initially, I will address several procedural matters. I note that the record contains a newspaper article.  It is well-settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of McFeeley, 53 Ed Dept Rep, Decision No. 16,598; Appeal of Parris, 51 id., Decision No. 16,261). Therefore, I have not considered the article for the veracity of its content.

Next, petitioners object to the consideration of an affidavit of district clerk June, submitted with respondents’ answer, because respondents did not formally reference or incorporate it in the answer.  Section 275.13 of the Commissioner’s regulations permits service of an answer, together with affidavits, exhibits and other supporting papers.  Therefore, I decline to reject June’s affidavit and have considered it as part of the record.

Finally, 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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.

Turning to the merits, 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).

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). Similarly, it is well settled that mere speculation as to the effect of alleged irregularities provides an insufficient basis on which to annul election results (Appeal of Crawford, et al., 47 Ed Dept Rep 413, Decision No. 15,739; Appeal of Kudlack, 45 id. 272, Decision No. 15,319).

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).

Petitioners contend, in conclusory fashion, that their poll watchers were located in the polling place where they were unable to observe or inspect voter signatures or credentials.  Petitioners have not submitted any affidavit from any of their poll watchers in support of their claim.  Respondents submit an affidavit by district clerk June attesting that petitioners were permitted to appoint poll watchers as representatives on their behalf to witness the May 20, 2014 election and that those poll watchers were seated sufficiently close to the registration table to inspect and observe voter credentials and polling.  June further avers that neither petitioners nor their poll watchers expressed concerns with the poll watchers’ locations within the polling sites, or challenged or objected to a single voter qualification.  As noted, petitioners submit no poll watcher affidavit to refute respondents’ assertions.  On this record, petitioners have failed to establish this claim (see Appeal of Crowley, 39 Ed Dept Rep 665, Decision No. 14,345).  Moreover, an individual who has the right to challenge a ballot and does not do so at the time of the election will not be allowed to object to the outcome of the election on the ground that unqualified ballots were counted in the election results (Appeal of Karliner, 36 Ed Dept Rep 30, Decision No. 13,644; Appeal of Levine, 24 id. 172, Decision No. 11,356, affd sub nom Capobianco v. Ambach, et al., 112 AD2d 640; Matter of Thomas, 22 Ed Dept Rep 238, Decision No. 10,946).

On the record before me, petitioners have not carried their burden of proving that irregularities occurred during the May 20, 2014 election warranting nullification of the results. 

Petitioners also contend that respondents prevented petitioners and their poll watchers from witnessing the canvassing of the voting machines and absentee ballots.  However, the record contains an email from the district clerk, emailed to all board candidates on May 19, 2014, stating that “poll watchers may be present during the canvassing of the ballots.” Petitioners have presented no affidavit from any poll watcher that a request to remain at the polling site after the close of the polls was denied, or that they objected to any aspect of the election on election day.  Moreover, I have previously held that there is no requirement that absentee ballots must be opened in the presence of the candidate or their representatives (see Appeal of Georges, 45 Ed Dept Rep 453, Decision No. 15,380). 

On the record before me, petitioners have failed to carry their burden of proof to rebut the presumption of regularity in the conduct of the May 20, 2014 election. While petitioners allege a number of irregularities, other than their conclusory allegations, they have failed to submit proof sufficient to demonstrate that any of the alleged irregularities actually occurred, affected the outcome of the vote, vitiated the electoral process or demonstrated laxity in adherence to Education Law.  Consequently, petitioners failed to establish any basis on which to overturn the results of the May 20, 2014 election.

Finally, to the extent that petitioners assert claims pursuant to FOIL, section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

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