Appeal of CASEY KING and ALLEN MOORE from action of the Board of Education of the Putnam Central School District, Superintendent Matthew Boucher, District Clerk Kim Brown, and board members Jodie Bruce and Farley Tierney III, regarding an election.

Decision No. 16,865

(February 4, 2016)

Katherine E. McNamara, Esq., attorney for petitioners

Girvin & Ferlazzo, P.C., attorneys for respondents, Kristine Amodeo Lanchantin, Esq., of counsel

ELIA, Commissioner.--Petitioners challenge the actions of the Board of Education of the Putnam Central School District (“respondent board”) in the conduct of the district’s school board election held on May 19, 2015 (“the election”) and seek to invalidate the election results.[1]  The appeal must be dismissed.

On May 19, 2015, respondent held its annual budget vote and election to fill two board seats.  Petitioner King competed against Farley Tierney III (“respondent Tierney”) for one board seat, to which respondent Tierney was elected.  Petitioner Moore ran against respondent Jodie Bruce (“respondent Bruce”) for the other seat, to which respondent Bruce was elected.  Respondent Tierney defeated petitioner King by six votes and respondent Bruce defeated petitioner Moore by thirty votes.  This appeal ensued.  Petitioners’ request for interim relief was denied on June 25, 2015.[2]

Petitioners allege several irregularities surrounding the election, including voting by unregistered and unqualified voters, voting by underage voters, improper instructions to a voter, and the alleged disqualification of votes.  Petitioners further allege that there were an excessive number of votes cast as compared to prior elections and that respondent Tierney had not satisfied the one year residency requirement prior to the election.  Petitioners seek the invalidation of the election of respondents Bruce and Tierney, a recanvassing and inspection of the ballots in the presence of all parties, and recertification of the election results.  Petitioners also seek an order that the district conduct a special election and that all future elections be conducted in accordance with applicable law and regulation.

Respondents contend that the petition fails to state a claim upon which relief can be granted and that the election was properly conducted in all respects.   Respondents contend that petitioners have failed to meet their burden of proof as the petition lacks details sufficient to support the conclusory allegations as to any voting irregularities and fails to set forth sufficient facts to justify nullifying the election.

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 raise numerous claims of impropriety regarding the May 19, 2015 election including voting by unregistered, unqualified, and/or underage voters.  However, petitioners have failed to establish that any alleged irregularities, had they occurred, would have affected the results of the vote.  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).  Petitioners claim that there were many “young” voters at the polls that either they or their affiants did not recognize.  From this, petitioners conclude that the “young” voters were either underage or not residents.  Petitioners do not provide names, ages, or addresses of any of these individuals, with the exception of one boy whose mother asserts in an affidavit was not even present at the polls as petitioners allege.  The petition consists of nothing more than general, conclusory, and speculative allegations, unsupported by any proof as to the age or residency status of unnamed, allegedly unqualified voters.  Even if I accept the petitioners’ allegation that one underage boy did vote, which is disputed by respondents, petitioners have not demonstrated that such vote affected the outcome for either board seat at issue in this appeal.

Petitioners next allege that, with regard to the race between Moore and Bruce (“Moore-Bruce race”), there was a margin of 30 votes and 7 votes were thrown out; with regard to the race between Tierney and King (“Tierney-King race”), there was a margin of 6 votes and 15 votes were thrown out.  Petitioners also argue that, in the Tierney-King race, “if only 7 of the rejected votes were cast for King and were in fact valid, King would have won the election.”  Respondents attach to their answer the voided ballots from each race.  In the Moore-Bruce race, even if I were to accept that all of the 7 voided ballots were properly cast for petitioner Moore, it still would not have affected the outcome of the Moore-Bruce race.  In the Tierney-King race, only 2 of the 15 voided ballots, at most, could be counted towards petitioner King as the others either voted for respondent Tierney, did not vote for either candidate, or included marks next to both names.  Thus, even if I were to accept those 2 voided ballots as properly cast for petitioner King, it still would not have affected the outcome of the Tierney-King race.  Therefore, on the record before me, petitioners have not met their burden of showing that the alleged discrepancies affected the outcome of the election and that the election results should therefore be overturned.

As to petitioners’ allegations regarding improper instructions to one voter who “had mistakenly marked two spaces,” petitioners again claim generally that there were improprieties but offer no evidence to support the argument.  Petitioners do not claim that the alleged impropriety occurred in the races involving petitioner King or petitioner Moore or that the alleged impropriety affected the outcome of either of those elections.  Therefore, I decline to overturn the election on this basis.

Petitioners also assert that, in order to vote at the election, a voter must be registered voter.  This assertion is mistaken.  Education Law §2012 governs the qualifications of voters at school meetings and elections.  To qualify to vote in a school district election, a person must be a citizen of the United States, at least 18 years old, a resident of the district for a period of at least 30 days preceding the election, and not otherwise disqualified as incompetent or ineligible pursuant to Election Law §5-106 (Education Law §2012).  A school district may adopt a system of personal registration pursuant to Education Law §2014, but is not required to do so (see 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.).  In a district without personal registration, district election officials may, but are not required to, request proof of residency (Education Law §2018-c; 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.).  Although any qualified voter may challenge another individual at the polls as being unqualified to vote, petitioners present no evidence that any challenges were made at the polls.  Nor have petitioners demonstrated that, in fact, any unqualified individual voted.  Moreover, even if petitioners’ allegations were true, they have not established that a sufficient number of unqualified voters cast votes so as to affect the outcome of the election with respect to either petitioner King or petitioner Moore.

Petitioners also allege that respondent Tierney was unqualified as he had not met the board’s one year residency requirement prior to the election.[3]  Petitioners allege that respondent Tierney had only been a resident of the district since approximately September 2014 and, therefore, was ineligible to run.  Petitioners provide a copy of a certificate of occupancy for respondent Tierney’s residence on Tiroga Beach Lane to prove that he did not live there until September 2014.  Respondent Tierney disputes petitioners’ claim, affirmatively avers that he has resided at that address since January 2014, explains that he did not need to obtain the certificate of occupancy until the closing on an equity loan in September 2014, and provides utility bills for the time period from January 2014 through May 2014 in support of his claim.  The utility bills do demonstrate that respondent Tierney was paying minimum amounts for utilities on his Tiroga Beach Lane property from October 2013 through December 2013 and that the utility bills substantially increased in January 2014.  This is consistent with respondent Tierney’s sworn statement that he did in fact begin living at the Tiroga Beach Lane address in January 2014.  The burden of proof that respondent Tierney did not reside within the district for one year prior to the election, as required by Education Law §2102, was on petitioners and they did not meet that burden merely by submitting a certificate of occupancy on a building project on respondent Tierney’s home that was dated less than one year prior to the election.  On this record, petitioners have not met their burden of proof on this issue.

Upon review of the record before me, I conclude that petitioners have failed to meet their burden of proof and find no basis upon which to nullify the results of respondent’s May 19, 2015 election.

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

THE APPEAL IS DISMISSED.

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