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Decision No. 17,091


       Decision No. 17,091

        (May 25, 2017)

Harris Beach PLLC, attorneys for petitioner, Laura M. Purcell, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner, the Board of Education of the Hilton Central School District, seeks an order pursuant to Education Law §2037 annulling the results of a district meeting, recanvassing the votes, and certifying the final election results.  The appeal must be sustained in part.

On May 17, 2016, petitioner conducted its annual meeting to obtain voter approval of the district’s proposed budget for the 2016-2017 school year (“Proposition #1”), for the proposed purchase of buses (“Proposition #2), and to elect candidates to board the of education.  The canvass for Proposition #1 and Proposition #2 is not being challenged in this appeal.   

With respect to the board member candidacies, voters were asked to elect three individuals to the board for three-year terms each, beginning July 1, 2016, and one individual for a two-year term, to fill a vacancy.  The electronic scan ballots used during the annual meeting contained bubbles next to each candidate’s name and also next to the propositions.  The absentee ballots contained the following instructions:

  • Ballot may be marked with a pen or pencil.
  • To vote on this ballot, fill in the voting bubble above the budget resolution and the name of the board candidate.
  • To vote for a person whose name is not printed on this ballot, write his/her name in the blank space provided at the bottom of this ballot.
  • Any mark outside of the voting bubble, any erasure, defacing, or tearing of the ballot is unlawful and will render the entire ballot void.
  • Any mark in a voting bubble other than a complete fill will render the ballot void (emphasis in original).

On the reverse side of the absentee ballot, voters were instructed to vote for up to four candidates as members of the board of education.  Candidates’ names were listed in a row with a bubble above each name and spaces for four write-in candidates below the pre-printed names.  The district’s affidavit ballot was nearly identical to the absentee ballot except it was titled, “Official Ballot – Affidavit.”

On the night of the election, the results from the electronic scan ballots with regard to the nominated candidates were as follows:

Nancy Pickering    941

Mark Hilburger     969

Russell Byer       670

Michelle Ames      660

David Malsegna     503

Andre Hudson       662

Barbara Cutrona    579

In addition, several of the nominated candidates received write-in votes on the scan ballots that were included in the count, as follows:

Nancy Pickering    2

Michelle Ames      3

David Malsegna     3

Andre Hudson       1

Barbara Cutrona    3

Seven out of the 11 affidavit ballots received were determined to have been completed by properly-registered voters and four were excluded for lack of voter registration.  The nominated candidates received the following votes by affidavit ballot:

Nancy Pickering    5

Mark Hilburger     4

Russell Byer       4

Michelle Ames      1

David Malsegna     2

Andre Hudson       4

Barbara Cutrona    2

With regard to the 38 absentee ballots received, four were not counted as they were returned unsigned.  Of the remaining 34 absentee ballots, seven were excluded because they had been marked incorrectly.  Specifically, in those cases, the voters did not completely fill in the bubbles next to the candidates’ pre-printed names, and instead only partially filled in the bubbles on the absentee ballot with a check mark or X mark.

The record indicates that an election inspector, Tammy Mullen, notified the district clerk that the inspectors had excluded seven out of the 34 absentee ballots because they had been marked incorrectly.  The inspector indicated that, based upon her training with the Monroe County Board of Elections, the ballots had to be disqualified because the voters failed to follow the directions on the absentee ballot.  Accordingly, seven out of the 34 absentee ballots were invalidated.  As a result, in the initial count, the nominated candidates received the following votes by absentee ballot:

Nancy Pickering    16

Mark Hilburger     18

Russell Byer       9

Michelle Ames      18

David Malsegna     13

Andre Hudson       5

Barbara Cutrona    18

In the initial count at the end of the night on May 17, 2016, the board candidates received the following total votes, from most to least, as follows:

Mark Hilburger     991

Nancy Pickering    964

Russell Byer       683

Michelle Ames      682

Andre Hudson       672

Barbara Cutrona    602

David Malsegna     521

Russell Byer received the third highest number of votes, entitling him to a three-year term, and Michelle Ames received the fourth highest number of votes, entitling her to a two-year term. 

The next day, May 18, 2016, the assistant superintendent learned that seven absentee ballots had been excluded, and given that the intent of the voters was discernible from the markings on each ballot, the assistant superintendent believed that the ballots were wrongly excluded.  As a result, the assistant superintendent determined to reopen the ballot box and count the seven previously-excluded ballots.  The assistant superintendent discovered that, after counting the previously-excluded seven absentee ballots, Mr. Byer would receive an additional three votes, bringing his total tally to 686, and Ms. Ames would receive an additional five votes, bringing her tally to 687.  In other words, Ms. Ames would now receive a three-year term, and Mr. Byer would receive the two-year term.  On May 20, 2016, the election inspectors and district clerk certified the adjusted final tally. 

On May 24, 2016, at the board’s next meeting, the assistant superintendent explained his decision to conduct a second canvass of votes and the resulting change in election results.  Additionally, Mr. Byer was administered the oath of office and began serving his two-year term.  Finally, the board, including board members Ames and Byer, certified the adjusted tally.  

By letter dated June 2, 2016, election inspector Mullen withdrew her certification of the election results and expressed concerns with petitioner’s actions regarding the election.  This appeal ensued. 

Petitioner asserts that a dispute exists concerning the validity of its election.  Petitioner asks that I, pursuant to Education Law §2037, declare the results of the annual election, as those results were certified on May 24, 2016, annulled; recanvass the votes to either include or exclude the absentee ballots at issue; and certify the results of the board election.  Alternatively, petitioner requests an order that the board recanvass the votes to either include or exclude the absentee ballots at issue and certify the results of the election after such recanvass.

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).

In addition, Education Law §2034(6)(a) authorizes the Commissioner of Education to order a recount of the ballots in school district elections (Matter of Carville v. Allen, 24 Misc 2d 812, mod. and aff’d 13 AD2d 866).  However, a recount will not be ordered absent a substantial attack on the integrity of the tallies and the returns of the inspectors of election, such as a showing of fraud or improper conduct (Appeal of Gresty, 31 Ed Dept Rep 90, Decision No. 12,580; Matter of Murtaugh, 19 id. 179, Decision No. 10,086; Matter of Morehouse, 15 id. 27, Decision No. 9,060).

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).

Initially, I must express my concern that the ballot box was reopened on May 18, 2016 for a recanvass. Education Law §2034(6) requires that ballots be placed in a locked and sealed ballot box, and that the ballot box shall not be opened except upon order of the Commissioner or upon resolution of the board of education after a period of six months has elapsed without any proceeding being commenced in regard to the election.  Instead of opening the box on its own initiative and conducting a recount, petitioner should have immediately commenced an appeal to me for an order pursuant to Education Law §2034(6)(a) directing that the ballot box be opened and the ballots recounted (see Appeal of the Bd. of Educ. of the Deposit Central School Dist., 49 Ed Dept Rep 449, Decision No. 16,078).  Further, there is nothing in the Education Law which gives the assistant superintendent the right to open the ballot box to recanvass void absentee ballots and to declare a new result.  Petitioner has not alleged that the assistant superintendent was appointed as chief election inspector, but even if he was, a chief election inspector is not authorized under Education Law §2034 to conduct a recanvass.[1]  Once the results of an election are declared, there is no authority in election officials or the voters to recanvass the results (see Appeal of Ell, 34 Ed Dept Rep 394, Decision No. 13,358; Appeal of Senecal, 22 id. 367, Decision No. 10,992; Appeal of LaValley, 12 id. 33, Decision No. 8,534). 

However, it appears from the record before me that the results of the May 17, 2016 election were not declared until May 24, 2016.  Education Law §2034(7)(b) provides that, in a school district that is divided into election districts, following the close of polls and canvassing of ballots, the election inspectors must “make a written report of the results of the ballot, signed by all such inspectors, to the chief inspector of election of each election district,” who must then file the written report with the district clerk within 24 hours.  The board must then, within 24 hours, tabulate and declare the result of the ballot (Education Law §2034[7][b]).  While petitioner has not explicitly alleged that it is divided into election districts, the record indicates that is the case, since the district has personal registration and two polling places.  Therefore, Education Law §2034(7)(b) governs the declaration of results in elections in petitioner’s district. 

According to the record, for the May 17, 2016 election, respondent appointed 16 election inspectors for its two polling locations, including a Head Teller at each polling location.  Absentee and affidavit ballots were tallied at the high school polling location.  On May 17, 2016, the original tally of absentee ballots was certified by three election inspectors, including Tammy Mullen, and the district clerk.  Following the decision to include the previously-excluded seven absentee ballots, on Friday, May 20, 2016, the two Head Tellers, Tammy Mullen, and the district clerk certified the adjusted final tally, which was then certified by the board on May 24, 2016.  Therefore, based on the record before me, I find that the board declared the results of the election on May 24, 2016.[2]  Moreover, the assistant superintendent conducted the recanvass on May 18, 2016, before the board’s declaration, to correct an error, upon learning that the intent of the voters was discernible from the markings on each rejected absentee ballot.  Therefore, I cannot find that a second count of ballots held after the discovery of the error and before official results are declared, is such an irregularity as to warrant the setting aside of an election (see Appeal of Lotto, 9 Ed Dept Rep 128, Decision No. 8,099). 

Additionally, I have examined the copies of the disputed paper absentee ballots provided by petitioner and have identified two issues.  First, the paper absentee ballots petitioner used do not appear to be in complete conformance with Education Law §§2018-a(4) and 2032.[3]  Second, instead of completely filling in the bubbles over each candidate’s name, the voters of the seven previously-rejected absentee ballots made a check or X mark in the corresponding bubble. 

With respect to the first issue, petitioner explains that the absentee ballots were “designed similarly to the electronic scan ballot[s],” which were in the format required by the Monroe County Board of Elections for use in the electronic scan voting machines in elections conducted under the Election Law.  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).  The instructions on the absentee ballots indicating that the failure to completely fill in the bubbles on the form renders the ballot void, are inconsistent with Education Law §§2018-a(4), 2032, and 2034.  Indeed, Education Law §2032(6) provides that an election of board members will not be declared invalid because of the use of ballots which do not conform to the requirements of that section, provided the intent of the voter can be ascertained and provided the use of the ballots was not fraudulent and did not substantially affect the election’s results (see Appeal of Reed, 55 Ed Dept Rep, Decision No. 16,871; Appeal of Farrell, 10 id. 30, Decision No. 8,173; Appeal of Nield, 56 St Dept Rep 134, Decision No. 3,686). 

With respect to the second issue, Education Law §2034(4) provides that, “if for any reason, it is impossible to determine the voter’s choice of candidate for an office his vote shall not be counted ... but shall be returned as a blank vote thereon.” As the record indicates, the voters’ choices of candidates are readily discernible from the copies of the seven absentee ballots submitted for my review.  Therefore, I conclude that the seven ballots rejected because of the failure of the voter to completely fill in the box should have been counted in the first instance.  It would serve no purpose for me to order another recount.  Petitioner has demonstrated to my satisfaction, based on the recanvass of the previously-rejected absentee ballots conducted on May 18, 2016, that Ms. Ames was the actual winner of the three-year term and that Mr. Byer was the actual winner of the two-year term.

While I strongly caution petitioner to ensure that the ballot canvassing procedures in the Education Law are followed in future votes, based upon the record before me establishing an error in the counting of the votes on May 17, 2016, I find that the appeal must be sustained to the extent indicated.


IT IS ORDERED that the actions of petitioner board of education in canvassing and declaring the results of the ballot with respect to the vote on the school district election on May 17, 2016, be, and hereby are, annulled; and

IT IS FURTHER ORDERED that the canvass of votes with respect to the May 17, 2016 school district election be corrected in conformity with this decision, and that Michelle Ames is declared elected to the three-year term and that Russell Byer is declared elected to the two-year term on the Board of Education of the Hilton Central School District.




[1] It is unclear from the record whether anyone was appointed as chief election inspector, though that is required under Education Law §2034(7)(b).


[2] I note that such declaration was based on the May 20, 2016 certification, which is currently in dispute in light of Teller Mullen’s June 2, 2016 withdrawal of her certification of the adjusted final tally.


[3] Although not contained in the record, I note that petitioner indicates that the affidavit ballots used in the May 17, 2016 election were nearly identical to the absentee ballots.