Application of the BOARD OF EDUCATION OF THE LIVERPOOL CENTRAL SCHOOL DISTRICT regarding a special meeting.

Decision No. 17,587

(February 11, 2019)

Bond, Schoeneck & King, PLLC, attorneys for petitioner, Kate I. Reid, Esq., of counsel

ELIA, Commissioner.--Petitioner, the Board of Education of the Liverpool Central School District, seeks an order pursuant to Education Law §2037 annulling the results of a December 11, 2018 special meeting.  The appeal must be sustained.

At a special meeting held on March 10, 2016, the voters of the Liverpool Central School District (“district”) approved a ballot proposition that authorized the district to repair one of its elementary schools, its high school, and its district transportation center at a maximum estimated cost of $39 million.  The ballot proposition proposed that $2.6 million be withdrawn from the district’s 2009 capital reserve fund to pay a portion of the costs.  This vote passed by a margin of 602 to 287.  Thereafter, the district determined that additional funds would be required to complete the above-mentioned projects.

On October 9, 2018, respondent adopted a resolution calling for a special district meeting on December 11, 2018 for the purpose of voting on proposition one, a proposition authorizing the district to appropriate additional funds from its capital reserves to complete the projects described above.  Respondent asserts that its intent in passing proposition one was to obtain voter authorization to appropriate up to $950,000 from the district’s 2016 capital reserve fund.  Respondent further asserts that, due to a clerical error, the ballot for the December 11, 2018 special meeting mistakenly referred to the district’s 2009 capital reserve fund instead of the 2016 capital reserve fund.  Respondent indicates that the 2009 capital reserve fund has fully expired and that funds in the 2009 capital reserve have already been expended to the full extent authorized by the district’s voters.

At a special meeting held on December 11, 2018, the district tallied and certified the votes of the December 11, 2018 vote.  The voters approved proposition one by a significant margin: 458 in favor, 193 opposed.

On January 11, 2019, petitioner commenced this appeal in which it requests that I either: (1) affirm the results of the favorable vote and deem proposition one, as intended, to have been accepted; or (2) invalidate the results of the December 11, 2018 budget vote and order a new election.

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, aff’d 26 NY2d 709; Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Caswell, 48 id. 472, Decision No. 15,920), were so pervasive that they vitiated the electoral process (Appeal of the Bd. of Educ. of the Minerva Central School District, 54 Ed Dept Rep, Decision No. 16,628; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905), 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, aff’d 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 Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748).

The record before me indicates that proposition one, as presented to the voters on December 11, 2018, erroneously referred to the withdrawal of an additional $950,000 from the district’s 2009 capital reserve fund instead of a withdrawal from the 2016 capital reserve fund.  Petitioner requests that I affirm the results “as intended” (i.e., to refer to the 2016 capital reserve fund) because “[n]o voters commented on the discrepancy” and, thus, I “may assume that every voter who voted ‘yes’ to a $950,000 appropriation from the 2009 Capital Reserve Fund would have ... voted ‘yes’ to the same appropriation from the 2016 Capital Reserve Fund.”  However, there is no basis in the record upon which to make this assumption.  From the point of view of the voters, proposition one on its face sought to increase the amount respondent was authorized to expend from the 2009 reserve fund for the elementary school, high school and district transportation center projects by $950,000. Contrary to respondent’s arguments, there is no evidence in the record that the voters were notified prior to the vote that the 2009 capital reserve fund had expired and that all funds in that reserve fund had been expended.[1]  Therefore, little weight can be given to the fact that no voters commented on the “discrepancy” in proposition one. 

Moreover, I cannot conclude that the voters’ approval extends to an expenditure from a different capital reserve fund.  Education Law §3651(3) requires voter authorization of expenditures from a reserve fund and inferring that voter approval of an expenditure from one capital reserve fund may constitute voter approval from another capital reserve fund would contravene that statute.  The voters could have reasons for objecting to the expenditure from the 2016 capital reserve fund that do not appear in this record, and I decline to speculate that the voters would have approved a first-time expenditure from the 2016 capital reserve fund.  Under the circumstances, I find that the unfortunate error described herein vitiated the fundamental fairness of the vote.  Thus, I find that a new vote is necessary to determine the will of the voters (Appeal of Bd. of Educ. of the Rush-Henrietta Central School District, 48 Ed Dept Rep 486, Decision No. 15,925; Appeal of Bd. of Educ. of the Schroon Lake Central School Dist., 47 id. 502, Decision No. 15,766; Appeal of Bd. of Educ. of the Goshen Central School Dist., 47 id. 352, Decision No. 15,721).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the results of the vote conducted by petitioner on December 11, 2018 are hereby annulled; and

IT IS FURTHER ORDERED that petitioner is hereby authorized to call a special meeting of the district for the purpose of conducting a vote on proposition one.

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