Decision No. 18,008
Application of the BOARD OF EDUCATION OF THE EAST ISLIP UNION FREE SCHOOL DISTRICT, regarding an election.
Decision No. 18,008
(June 21, 2021)
Ingerman Smith LLP, attorneys for petitioner, Neil M. Block, Esq., of counsel
ROSA., Commissioner.--Petitioner, the Board of Education of the East Islip Union Free School District, seeks an order pursuant to Education Law § 2037 annulling and correcting the canvass of votes and certification of results for two board of education seats in its 2021 annual budget vote and election. The appeal must be sustained in part.
On May 18, 2021, the East Islip Union Free School District (the “district”) conducted its annual election, which included a vote to fill three seats on the district’s board of education. In petitioner’s district, candidates run for, and are elected to, specific board seats (see Education Law § 2018). For one seat (the “first seat”), the candidates were Charles Kalinowski, Michael Dorgan, and Laurie Gapinski-Gould. For another seat (the “second seat”), the sole candidate was Joann Walsh. At the close of the election, the election inspectors printed the tape containing the results from each election machine and canvassed the absentee ballots. An election inspector reported the final tally to the district clerk for the first seat as 745 votes for Mr. Kalinowski, 675 votes for Mr. Dorgan, and 429 votes for Ms. Gapinski-Gould. The votes for the second seat were reported as 1,405 votes for Ms. Walsh. Based on these results, Mr. Kalinowski was elected to the first seat and Ms. Walsh was elected to the second. Petitioner thereafter convened a meeting to certify the election results.
On May 19, 2021, while completing a “Post Election Processing Form,” the district clerk discovered a vote counting error that resulted in Ms. Walsh receiving 466 more votes. The district clerk, assistant superintendent for business, and secretary of special programs reviewed the master tally sheet and additionally determined that Mr. Dorgan had received 915 votes, an amount which would make him the winner of the first seat. Petitioner invited the candidates for the first seat to attend an executive session to explain the tabulation errors and petitioner’s intent to file the instant petition. This application ensued.
Petitioner requests that I issue a decision pursuant to Education Law § 2037 annulling and correcting the canvass of votes and certification of results for the first and second board of education seats.
To invalidate the results of a school district election, a petitioner must either: (1) establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or (2) demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (see Matter of Boyes v Allen, 32 AD2d 990, 991 [3d Dept 1969], affd on op below 26 NY2d 709 ; Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of the Bd. of Educ. of the Minerva Cent. Sch. Dist., 54 id., Decision No. 16,628; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905; Appeal of Levine, 24 id. 172, Decision No. 11,356, art 78 dismissed Matter of Capobianco v Ambach, 112 AD2d 640 [3d Dept 1985]). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of an election are so pervasive as to vitiate the fundamental fairness of the election (see 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, the results of the election for the first seat must be invalidated. The record demonstrates that irregularities in the tabulation of votes for the first seat affected the outcome of the election. Specifically, petitioner has submitted proof suggesting that Mr. Dorgan, and not Mr. Kalinowski, received the most votes for the first seat. Accordingly, the application is sustained insofar as it requests relief with regard to the election for the first seat.
Although petitioner has also submitted proof that irregularities occurred in the tabulation of votes for the second seat, I decline to annul the results and order a recanvassing of the votes. As indicated above, candidates run for specific board seats in petitioner’s district. Ms. Walsh was the only candidate for the second seat and petitioner’s discovery of additional votes cast for Ms. Walsh would not affect the outcome of the election for the second seat.
THE APPEAL IS SUSTAINED IN PART.
IT IS ORDERED that the results of the vote conducted by petitioner on May 18, 2021 for the seat described herein as the “first seat” are hereby annulled; and
IT IS FURTHER ORDERED that petitioner is hereby authorized to correct the canvass of votes and certification of results for the aforementioned first seat.
END OF FILE
 I note that the number of write-in votes cast in the election was not enough to make a difference in the outcome.