Appeal of the BOARD OF EDUCATION OF THE MASSAPEQUA UNION FREE SCHOOL DISTRICT regarding an election.

Decision No. 17,747

(August 29, 2019)

Hamburger, Maxson, Yaffe & McNally, LLP, attorneys for petitioner, Richard Hamburger and Andrew K. Martingale, Esqs., of counsel

ELIA., Commissioner.--Petitioner, the Board of Education of the Massapequa Union Free School District, seeks an order pursuant to Education Law §2034(6)(a) directing a manual hand recount of the ballots cast on one voting machine at a district meeting.  The appeal must be dismissed.

On May 21, 2019, petitioner conducted its annual meeting to, among other things, elect two members to its board of trustees.  With respect to the board member vacancies, voters were asked to elect two candidates.  The candidate receiving the most votes was to fill a new, three-year term on the board; the candidate receiving the second most votes was to complete the remainder of the term of a former board member whose seat was vacated following his removal from office.[1]  The full, three-year term was to commence July 1, 2019; the shorter, approximately thirteen-month term was to commence immediately upon certification of the election’s results.  Four candidates were on the ballot: Allison Steakin, Cher Lepre, Michael McCann, and Erik Gustafson.

Voting was held at respondent’s high school and at three of its elementary schools.  There were two electronic voting machines at each elementary school and three electronic voting machines at the high school.  One of the electronic voting machines (machine #3333414, located at McKenna Elementary School) produced vote tallies indicating that candidates Steakin and Lepre each received 362 votes, and candidates McCann and Gustafson each received 290 votes.

On the night of the election, the results from all polling sites were as follows:

Allison Steakin:1625 votes

Cher Lepre:         1612 votes

Michael McCann:     1569 votes

Erike Gustafson:    1278 votes

The record indicates that individual poll watchers noted the unusual results generated by machine #3333414 (i.e., two pairs of candidates each received an identical number of votes).  The record further indicates that, on the evening of the election, an attorney associated with petitioner’s law firm advised the poll watchers that the Commissioner of Education has sole authority to order a vote recount.  The electronic voting machines were impounded by the county board of elections, the election results were certified, and candidate Lepre (who received the second most votes) was immediately sworn-in as a trustee.  I take judicial notice of public information on the district’s website which shows that candidate Steakin (who received the most votes) has been sworn-in as a trustee.[2]  This appeal ensued.

Petitioner asserts that the school district has an obligation to ensure the integrity of the trustee vote and it believes a hand recount to be the only way to ensure accuracy.  Petitioner notes that there was a narrow vote margin between the candidates (i.e., thirteen votes separate the top two vote-getters and 43 votes separate the second and third highest vote-getters).  Accordingly, petitioner requests that I order a manual hand recount of the electronic votes cast for board trustee at voting machine #3333414.  Petitioner further requests that, should I order a recount “and the results of the election overturned such that Ms. Cher Lepre no longer be the second highest vote receiving candidate, that any resolutions that she has voted on be deemed valid nunc pro tunc.”[3]

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 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, 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 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).

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 the Board of Education of the Hilton Central School District, 56 Ed Dept Rep, Decision No. 17,091; Appeal of Gresty, 31 id. 90, Decision No. 12,580; Matter of Murtaugh, 19 id. 179, Decision No. 10,086).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  Petitioner has failed to do so in the instant appeal.

As indicated above, petitioner asserts that “one of the machines ... produced highly irregular results as to the trustee vote.”  In support of this claim, petitioner included, as an exhibit with the petition, spreadsheets containing the vote tallies generated by the nine electronic voting machines used at the four polling sites.[4]

Petitioner submits no affidavits or any other evidence to support its claim that one electronic voting machine produced “highly irregular results.”  Rather, petitioner bases its request for a hand recount solely on the fact that two pairs of candidates received identical vote totals on one of the nine electronic voting machines.  However, in an affidavit included with candidate Steakin’s submission, a poll watcher who was stationed at McKenna Elementary School and who was present at Massapequa High School for the vote tally, avers that:

[She] did not hear anyone request a recount that night at McKenna Elementary School nor at Massapequa High School where all four candidates ... were present.  [She] heard [the attorney from the district’s law firm] state that there was no indication of a machine malfunction immediately before the election results were certified and Cher Lepre, the second place candidate, was sworn in.  

As noted, above, 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, were so pervasive that they vitiated the electoral process, or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.  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 Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Antaki and Mosman, 47 id. 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.).  It is also well settled that mere speculation as to the effect of alleged irregularities provides an insufficient basis on which to annul election results (Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Crawford, et al., 47 id. 413, Decision No. 15,739).  Here, petitioner’s claim is purely speculative; it has not established that irregularities occurred.  And, even assuming that an irregularity had occurred, petitioner has submitted no evidence that such irregularity actually affected the outcome of the election, was so pervasive that it vitiated the electoral process, or demonstrated informality to the point of laxity in adherence to the Education Law.  Further, as noted above, a recount pursuant to Education Law §2034(6)(a) 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.”  No such fraud or improper conduct has been demonstrated, or even alleged, in the instant appeal.

In light of this conclusion, I need not address petitioner’s remaining claims or requests for relief.

THE APPEAL IS DISMISSED.

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