Appeal of KATRINA N. CRAWFORD, from action of the Wyandanch Public Library Board of Trustees of the Wyandanch Public Library, Ghenya B. Grant as President[1] and Nancy Holliday, Norman Sellers, Judith Graham-Guerrier, Khristian M. Jones, Jennifer L. Martin, and Edwin B. Maxwell as trustees of the Wyandanch Public Library regarding an election.

Decision No. 17,785

(November 7, 2019)

Shawn S. Cullinane, Esq., attorney for petitioner

Bond, Schoeneck & King, PLLC, attorneys for respondent, Candace J. Gomez, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioner appeals the determination of the Wyandanch Public Library (the “library”), the Board of Trustees of the Wyandanch Public Library (“respondent board”), Ghenya B. Grant as President and Nancy Holliday, Norman Sellers, Judith Graham-Guerrier, Khristian M. Jones (“respondent Jones”), Jennifer L. Martin, and Edwin B. Maxwell as trustees of the Wyandanch Public Library (collectively, “respondents”) with respect to the election for a seat on the board of trustees held on April 2, 2019 (the “election”).  The appeal must be sustained.

At all times relevant to this appeal, the Wyandanch Public Library Board consisted of five members, who were President Ghenya B. Grant and Trustees Nancy Holliday, Norman Sellers, Judith Graham-Guerrier, and Khristian M. Jones.  Petitioner and respondent Jones were both candidates in an election for a trustee position on respondent board, for a five-year term commencing on July 1, 2019.

On March 4, 2019, petitioner submitted a petition to place her name on the ballot for the election.  Petitioner identified her address as a location within respondent board’s district (the “first in-district address”).

In an undated letter received by petitioner on March 7, 2019, respondent board notified petitioner that it required evidence from her proving that she, in fact, resided within the library’s district.  Respondents requested such proof by March 8, 2019.

On March 8, 2019, petitioner provided respondents with a notarized letter in which she indicated that she resided within respondents’ district.  The signed and notarized letter identified petitioner’s address as the first in-district address.  According to respondent, petitioner also provided an envelope addressed to her at the first in-district address.[2]

In a letter dated March 13, 2019, respondent board rejected petitioner’s nominating petition because she “only submitted a copy of the front of an undated envelope” and “did not state [her] address in [her] sworn statement.”  Respondent board indicated that petitioner’s name would not appear on the ballet in the upcoming election.

The election was held on April 2, 2019.  According to a memorandum from respondent board to the 2019 election clerk dated April 8, 2019, petitioner received 100 write-in votes identifying her as “Katrina N. Crawford” or “Katrina Crawford.”  Respondent board also received 13 votes that, while ambiguous, appear to be variations on petitioner’s name (for example, “Kathrin Crawford” and “Katrina Cradford”).  The incumbent, respondent Jones, received 87 votes.

In a letter dated April 4, 2019, an attorney representing the library informed petitioner that “an issue ha[d] arisen with regard to [her] residency, and therefore [her] qualifications to be a member of the Board of Trustees.”  The attorney invited petitioner to discuss the matter with respondent board on April 8, 2019.  The attorney also requested that petitioner provide “any and all documentation which would establish [her] residency in the Wyandanch School District for at least one continuous year” prior to the April 2, 2019 election.  The attorney indicated that “[t]his could include, for example, a driver’s license, voter registration card, utility and other bills, tax returns (appropriately redacted), etc.”

On April 8, 2019, respondent board convened a special meeting to reach a “determination of issues regarding the residency of a candidate for trustee” and a “determination and certification of the election results.”  Petitioner, who attended the meeting at respondent board’s invitation, submitted a copy of her driver’s license, a Suffolk county voter registration record, and a Wyandanch Library registration form in support of her claim of residency within the district.  All three documents identified petitioner’s address as the first in-district address.

In a letter dated April 9, 2019, respondents indicated that, at the board meeting held the previous evening, it passed the following motions by 3-1 votes:  (1) that petitioner “was not qualified to hold the position of Trustee”; (2) “that any votes cast in the election for anyone other than Katrina N. Crawford not be counted”; and (3) that Khristian Jones was certified as the winner of the five-year trustee position commencing July 1, 2019.  This appeal ensued.

Petitioner argues that she resides within respondent board’s district and that respondents’ determination to the contrary was arbitrary and capricious.  Petitioner further argues that respondents erred by removing her name from the ballot for the April 2, 2019 election and by failing to declare her the winner based upon her receipt of the majority of votes.  Petitioner seeks an order declaring her the successful candidate for the board position at issue in the April 2, 2019 election.

Respondents argue that petitioner has failed to demonstrate that she resides within its district.  Respondents further contend that dozens of the write-in votes cannot be considered votes for petitioner because they contain inconsistent spellings of petitioner’s name.

First, I must consider petitioner’s residency, which is a threshold issue to determining the validity of the April 2, 2019 election.  Pursuant to Education Law §260(2), candidates for the office of trustee of a public library established and supported by a school district, such as respondent board herein, shall be elected by the legal voters in the same manner as trustees are elected in the school district which established the library.  Thus, Education Law §2102, concerning the qualification of voters in a union free school district (such as the Wyandanch Union Free School District) requires that a candidate for a trustee position on respondent board must “have been a resident of the school district ... for at least one year prior to the election.”  For purposes of election to public office, Election Law §1-104 defines “residence” as “that place where a person maintains a fixed permanent and principal home and to which he [or she], wherever temporarily located, always intends to return” (see Appeal of Roy, 31 Ed Dept Rep 497, Decision No. 12,713).

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).

Here, the record supports a finding that petitioner is a resident of respondent’s district.  As indicated above, in response to respondents’ request that petitioner prove her residency within the district, petitioner submitted an envelope addressed to her at the in-district address and a signed, notarized letter in which she listed the first in-district address as her address at the top of the letter.  Respondents argue that this was improper because it asked her to provide “a sworn statement which indicates that you reside at the [in-district] address,” and petitioner did not so state in her response.  Respondents’ argument places form over substance:  in the letter, petitioner identified her address as the first in-district address, acknowledged receipt of the district’s request, indicated that she was “submitting one proof of residency,” and expressed her hope “that this letter puts everyone at peace so that we can move forward ....”  I find, based on the plain language of petitioner’s letter and the attendant circumstances, that petitioner intended to affirm her residency at the first in-district address.

While respondents identify additional evidence that caused them to doubt petitioner’s residency, there is no information in the record that respondents had, or relied upon, such information when they rejected petitioner’s nominating petition on March 13, 2019.  Respondents merely state that “[q]uestions concerning petitioner’s residence ... arose at the time that she submitted her nominating petition on or about March 4, 2019.”  Generalized suspicion concerning an individual’s residency cannot serve as a basis for an adverse residency determination (Appeal of the Board of Education of the East Ramapo Central School District, 58 Ed Dept Rep, Decision No. 17,456).  Therefore, respondents’ rejection of petitioner’s nominating petition on the basis of non-residency was improper.

Additionally, at the April 8, 2019 meeting, respondents erred by determining that petitioner failed to substantiate her residency within the district.  At that meeting, petitioner submitted a copy of her driver’s license, a voter registration record, and a library registration card, each of which bore the in-district address.[3]  Respondents attempt to discount the probative value of petitioner’s driver’s license because it was not issued within the prior year, the relevant time period for assessing petitioner’s residency.  I find this claim to be without merit.  According to the record, petitioner’s driver’s license was issued by the New York State Department of Motor Vehicles (“DMV”) on November 23, 2016 and does not expire until November 27, 2024.  Thus, the license was in effect during the relevant time period and constitutes probative evidence of petitioner’s residency.[4]

Respondents also assert that they obtained a copy of a mortgage agreement, dated December 22, 2015, for a property petitioner obtained located at another location within respondent board’s district (the “second in-district address”).  This mortgage agreement identified petitioner’s address as a location in Central Islip, New York, which is not located within respondent board’s district (the “out-of-district address”).  Respondents also obtained, and questioned petitioner concerning, a document associating her “National Provider Identifier”[5] with the out-of-district address.  Further, respondents questioned petitioner about a January 5, 2019 “Request for Use of Library Facilities” application form, completed by an individual who is not associated with this appeal, that identified petitioner’s address as the second in-district address.  Respondents also assert on appeal that, according to internet search engine queries for petitioner’s name using Google and “White Pages,” petitioner is associated with an address or addresses located outside of respondents’ district.  Finally, respondents contend that surveillance of petitioner conducted on June 4, 5, and 6, 2019, demonstrates that petitioner resides at the second in-district address.

I do not find that respondents’ evidence demonstrates that petitioner is not a resident of respondent board’s district.  As an initial matter, to the extent respondents argue that petitioner resides at the second in-district address, this argument is irrelevant because, even if true, such location is also located within respondent board’s district.  Respondents nevertheless argue that one can only have “one” legal residence and, thus, petitioner was not truthful when she indicated that she resided at the in-district address.  Respondents appear to conflate two separate issues:  (1) the requirement of Education Law §2102 that an individual may only be eligible for a position on respondent board if he or she had been “a resident of the school district ... for at least one year prior to the election”; and (2) the rule that an individual may have only one legal residence (Election Law §1-104).  The former is designed to limit eligibility for board positions to district residents, while the latter is a legal principle concerning the number of residences an individual may have (see Appeal of Squillace, 57 Ed Dept Rep, Decision No. 17,385 [a student must have one residence and cannot, contrary to petitioner’s argument, have zero or two residences]).  Thus, even assuming that petitioner lived at the second in-district address for one year prior to the April 2019 election, she would still be a district resident eligible to be placed on the ballot.  Therefore, I need not determine whether petitioner resides at the first or second in-district address.[6]

Additionally, the record does not support a finding that petitioner resided at the out-of-district address during the relevant period.  Petitioner contends that the out-of-district address is a “business address” and that she has never resided at that location.  However, I acknowledge that, in the mortgage document, petitioner agreed to “occupy, establish, and use the property as [her] principal residence within sixty days ... and shall continue to occupy the property as [her] principal residence for at least one year after the date of occupancy ....”  Under the terms of the mortgage agreement, then, petitioner was obligated to maintain residence at the out-of-district address until February 20, 2017 (i.e. a year and sixty days after December 22, 2015).

To demonstrate her residency for purposes of Education Law §2102, petitioner was only required to prove her residency within the district for “at least one year prior to the election”; i.e. from April 2, 2018 through April 2, 2019.  Thus, petitioner’s mortgage obligation is not inconsistent with her burden of proof in this proceeding (compare Appeal of Roy, 31 Ed Dept Rep 497, Decision No. 12,713 [petitioner demonstrated a candidate’s change of residency through, among other things, an affidavit stating that the candidate signed a Fannie Mae Form 1003 as part of an application indicating that he was purchasing a property for use as his primary residence]).  While the mortgage would be relevant to a determination of petitioner’s residency in 2016, I cannot find that it demonstrates petitioner’s residency during the one-year lookback period required by Education Law §2102.

Additionally, the internet search results submitted by respondents are of little probative value because there is no evidence in the record as to where, or how, the internet search providers obtained the information concerning petitioner’s alleged residence.  While an internet search may prove a useful starting point in determining an individual’s residency, generic search results in and of themselves have little persuasive value (Appeal of A.D.J., 56 Ed Dept Rep, Decision No. 16,973; cf. Appeal of the Board of Education of the East Ramapo Central School District, 58 id., Decision No. 17,456)).

I must also reject respondents’ assertion that online search results associating petitioner’s NPI with the out-of-district address demonstrate that petitioner resides at the out-of-district address.  This information identifies petitioner as a “provider” at the out-of-district address.  As indicated above, petitioner asserts that she has always used the out-of-district address for business purposes.  Respondents have produced no information that contradicts this assertion.  Thus, there is no basis in the record upon which to conclude that petitioner resided at the out-of-district address at any time relevant to this appeal.

Additionally, I do not find respondents’ surveillance evidence probative because it was conducted on June 4, 5, and 6, 2019, over two months after the April 2, 2019 election.  As indicated above, it is petitioner’s residency from April 2, 2018 through April 2, 2019 that is relevant in this appeal (see Education Law §2102).  In any event, this surveillance evidence portrayed petitioner at the second in-district address, which, as indicated above, supports petitioner’s claim of residency.

Respondents’ reliance upon Appeal of Taylor (39 Ed Dept Rep 712, Decision No. 14,357) and Appeal of Burwell (25 Ed Dept Rep 102, Decision No. 11,511) is also misplaced.  In Appeal of Taylor, a voter eligibility case, the Commissioner held that the voter maintained his primary residence in New Jersey, where he lived with his wife and children, and did not file a New York State tax return.  In Appeal of Burwell, the Commissioner rejected the petitioner’s arguments that he:  (1) became a district resident merely by entering into a contract to purchase a home; and (2) that his residence within the district for nine months constituted “substantial compliance” with the one-year residency requirement of Education Law §2102.  In the instant appeal, respondents have not produced any evidence suggesting that petitioner resided outside of its district during the one year prior to the disputed election.

Having determined that petitioner was a resident of respondent board’s district at all times relevant to this appeal, it is next necessary to determine whether petitioner has met her burden of proving a clear legal right to her requested relief; namely, a declaration that she was the rightful winner of the April 2, 2019 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, 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).

Here, petitioner submits a memorandum from respondent board to the 2019 election clerk dated April 8, 2019, the accuracy of which respondents do not contest.  This memorandum includes a chart indicating that “Katrina Crawford” received 50 votes (42 by machine, 8 hand-counted) and “Katrina N. Crawford” received 50 votes (48 by machine, 2 hand counted).  While respondents indicate that the “write-in votes contained various spellings which made it difficult for the Board to ascertain the voters’ intentions,” petitioner submits a letter from the records department of the Suffolk County Board of Elections indicating that there is only one individual named “Katrina Crawford ... registered to vote in Suffolk County.”  Respondents produce no evidence to contradict this letter.  As the Appellate Division has reasoned, “[w]here ... there is only one candidate with the surname indicated, and the surrounding circumstances are such that the candidate is the only individual for whom the voter reasonably could have intended the ballot to be cast, the omission of a write-in candidate’s first name does not render the ballot invalid” (see Rosenblum v. Tallman Fire Dist., et al., 117 AD3d 1064, 986 NYS2d 582 [2014]).  Thus, petitioner has sufficiently demonstrated that both above presentations of her name refer to her and respondent has not refuted such evidence.  Consequently, I find that petitioner received 100 votes in the April 2, 2019 election, which exceeded the 87 votes received by respondent Jones.[7]

Respondents’ only response is that certain legal authority cited by petitioner, such as Rosenblum v. Tallman Fire Dist., et al., (id.), concerns provisions of the Election Law, and the Election Law does not apply to elections for the board of trustees of a school library district.  Although it is well-settled that 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 Commissioner has considered provisions or interpretations of the Election Law as guidance for interpreting the Education Law (see e.g. Appeal of Baker, 30 Ed Dept Rep 228, Decision No. 12,443; Appeal of Como, et al., 28 id. 483, Decision No. 12,177; Matter of Savage, 1 id. 24, Decision No. 6,440).  Thus, there is nothing improper in considering cases arising under the Election Law as persuasive authority where no contrary provision of the Education Law exists.  In any event, my decision herein is based upon the record before me and pertinent portions of the Education Law.

Therefore, under the circumstances presented, I find that petitioner has carried her burden of proof and established that respondents’ conduct vitiated the fundamental fairness of the election.  However, I note that respondent Jones was a valid member of the library board of trustees until the date of this decision; thus, no actions of the board in which he participated as a de facto member are invalidated as a result of this decision.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the results of the library board election conducted by respondent board on April 2, 2019, are hereby annulled; and

IT IS FURTHER ORDERED that the position of Khristian M. Jones as trustee of the Wyandanch Public Library is declared vacant for the reasons set forth above; and

IT IS FURTHER ORDERED that respondent board appoint petitioner to fill the seat on the board of trustees for which she was the successful candidate in the April 2, 2019 election.

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