Decision No. 16,764
Appeal of DORIS DODSON, RUBEN VALLEJO, MONIQUE McCRAY, MONICA GARBARCZYK and KURT HANTUSCH from action of the Central Islip Union Free School District and Superintendent Craig Carr regarding a school district election and budget vote.
Decision No. 16,764
(June 4. 2014)
Kevin A. Seaman, Esq., attorney for respondent Board of Education of the Central Islip Union Free School District.
BERLIN, Acting Commissioner.--Petitioners challenge actions of the Central Islip Union Free School District (“respondent”) and the district’s superintendent of schools, Craig Carr (“Superintendent Carr”), in conducting the district’s May 20, 2014 annual election and budget vote. The appeal must be dismissed.
At the May 20, 2014 annual election, petitioners Dodson, McCray and Vallejo ran unsuccessfully as candidates to fill three vacancies on the board of education. Petitioners challenge the results of the election and budget vote on several grounds. Their request for interim relief staying such results was denied on June 26, 2014.
Petitioners allege that candidates were permitted to run for office as a school board member without verification that they were United States citizens or residents of the school district. They also claim that voter registration lists did not contain signatures against which the signatures of individuals presenting themselves to vote could be checked. Petitioners maintain that such omissions were inconsistent with board policy and resulted in “violations of state and federal election laws.” Petitioners argue that Superintendent Carr is responsible for implementing board policy. They seek invalidation of the results of the May 20, 2014 election and budget vote. They also ask that I impose discipline and/or terminate the employment of “those judged to have been irresponsible and guilty of unlawful conduct and negligence....”
Respondent contends that, with respect to petitioners’ challenge to the nominating petitions, the appeal must be dismissed as untimely and for laches. Respondent also asserts that petitioners have failed to join necessary parties. Respondent contends that petitioners failed to establish that any irregularity occurred in connection with the May 20, 2014 election and budget vote or that any alleged irregularity affected the outcome of the vote. Finally, respondent maintains that petitioners’ request for discipline or termination of school officials is outside my jurisdiction.
I will first address respondent’s procedural claims. The appeal must be dismissed, in part, as untimely. 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).
Education Law §2018 requires that nominating petitions be submitted not less than thirty days prior to an election. According to the record, such petitions were filed pursuant to the statute on April 21, 2014. This appeal was commenced on June 19, 2014, almost two months later. Thus, to the extent that petitioners assert claims that district staff failed to verify the eligibility of candidates upon the filing of the nominating petitions, or that they object to the qualifications of any board candidate, the appeal is untimely (Appeal of Grant, 42 Ed Dept Rep 184, Decision No. 14,816; Appeal of Campbell and Bedard, 41 id. 207, Decision No. 14,665).
The appeal must also be dismissed, in part, 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).
Petitioners have not named or served the three successful candidates elected on May 20, 2014 to seats on the board of education. As a determination in petitioners’ favor herein would adversely affect those board members’ right to hold office, they are necessary parties. Petitioners’ failure to join the successful candidates as respondents requires dismissal of petitioners’ challenge to the May 20, 2014 election results.
In addition, to the extent that petitioners challenge specific actions of Superintendent Carr and seek his discipline and/or termination of his employment, the appeal must be dismissed. Although Superintendent Carr is named as a respondent in the notice of petition, he is not so named in the petition. In addition, a copy of the petition was not served upon him. Having failed to properly join Superintendent Carr, petitioners’ claims against him must be dismissed. Moreover, I note that it is the board of education that has the authority and responsibility to determine whether disciplinary action against a district employee is warranted, not the Commissioner (Appeal of J.K., 41 Ed Dept Rep 337, Decision No. 14,705; Appeal of Lloyd, 39 id. 537, Decision No. 14,303). Therefore, I lack jurisdiction to award the relief sought by petitioners against the superintendent.
Petitioners’ remaining claim is that the May 20, 2014 budget vote must be invalidated because respondent violated state and federal election law, as well as board policy, in that the district’s voter registration list did not contain voters’ signatures and that signatures were not verified prior to a voter casting a ballot. According to the record, prior to the annual election, the district receives a copy of a voter registry and supplemental voter registration list from the Suffolk County Board of Elections (“board of elections”) containing names and addresses of eligible voters in the district, but not individual signatures. The district maintains its own registration list and, apparently, uses the board of elections’ list to supplement its own. Petitioners claim that the May 20, 2014 vote was compromised because individual voter signatures were not verified before persons voted.
To the extent that petitioners’ allege violations of the Election Law, I note that, 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).
Petitioners cite to no provision of Education Law mandating that union free school districts that provide for personal registration obtain voter signatures as part of the registration process, to be used for verification of voter eligibility at the polls and, indeed, there are none.
However, the record indicates that respondent adopted Board Policy 2120.2 which states, in pertinent part:
The School District Board of Registration will obtain a register from the Suffolk County School Board of Elections of District voters who voted in the last general election, on or before March 1st of each year for use in preparing the school district register to be utilized at the District’s Annual Meeting Vote and Election.
The School District’s register of eligible voters shall be consistent in content with the Suffolk County Board of Elections’ register, including the show of the registered voters’ signatures, which will be used to verify the signature of each voter who presents at the Annual Meeting Vote.
Respondent asserts that, for each election, it receives a voter registration list from the board of elections and that, historically, that registration list has not contained signatures. Respondent points out that, pursuant to its policy, the district’s registration list can only reflect the information and be “consistent in content” with that of the board of elections’ list. Since the list it receives from the board of elections does not contain signatures, nor can its own list; thus, a comparison of signatures at the polls is not possible. Respondent argues that, to the extent Board Policy 2120.2 presumes that such a listing of signatures from the board of elections is made available, it is erroneous. For the reasons set forth below, I need not determine whether respondent’s actions with respect to its policy constitute an irregularity in connection with the May 20, 2014 election and budget vote. However, I urge respondent to examine its policy and address any errors or inconsistencies.
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, 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).
In this appeal, petitioners merely speculate as to the potential for unqualified individuals to have voted on May 20, 2014. Petitioners present no evidence that any unqualified individual did, in fact, cast a ballot. Thus, petitioners have not met their burden of proof and have not established that any alleged irregularities affected the outcome of the vote.
Moreover, a qualified voter may challenge, either prior to or at the district meeting, the qualifications of any other voter (Appeal of Brannon 42 Ed Dept Rep 220; Decision No. 14,830; Appeal of Crowley, et al., 39 id. 665, Decision No. 14,345; Appeal of Fraser-McBride, 36 id. 488, Decision No. 13,783). A person who has the right to challenge a voter and permits him to vote without such challenge is not allowed to object to such voter’s participation (Appeal of Brannon 42 Ed Dept Rep; Decision No. 14,830; Appeal of Crowley, et al., 39 id. 665, Decision No. 14,345; Appeal of Fraser-McBride, 36 id. 488, Decision No. 13,783). There is no evidence that petitioners challenged the qualifications of any voter at the May 20, 2014 election and budget vote. Thus, they may not do so here.
Consequently, I find no basis on which to overturn the results of the district’s May 20, 2014 election and budget vote.
In light of this disposition, I need not consider the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 The answer to the petition is submitted on behalf of respondent school district.
 In its memorandum of law, respondent argues that petitioners’ claim regarding verification of voter signatures is also untimely. However, respondent’s answer did not include that defense. A memorandum of law may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668). Having failed to raise it in the answer, the defense is waived.
 I note that April 20, 2014 fell on a Sunday.
 I note that petitioners do not allege that any specific candidate was not, in fact, a United States citizen.
 I note that respondent cites to Education Law §2609 which applies to city school districts in cities having a population of less than 125,000 inhabitants.