Appeal of STAN J. ERCOLANO from action of the Board of Education of the Westbury Union Free School District, Laura Pierce and Karin Campbell regarding an election.

Decision No. 16,798

(July 24, 2015)

Jaspan Schlesinger LLP, attorneys for respondents, Lawrence J. Tenenbaum, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals certain actions of the Board of Education of the Westbury Union Free School District (“respondent board”) in conducting of the district’s May 17, 2011 school board election. The appeal must be dismissed.

The election was conducted at four polling places in the district: Westbury Middle School, Drexel Avenue School, Park Avenue School, and Dryden Street School.  Petitioner and respondents Pierce and Campbell ran “at large” for two vacancies on the board.  Respondents Pierce and Campbell (collectively with the board “respondents”) received the highest number of votes - 765 and 727, respectively - and were elected.  Petitioner received 643 votes, 122 fewer votes than respondent Pierce and 84 fewer votes than respondent Campbell.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner alleges several election irregularities including that: voting to fill vacancies “at large” was not authorized because the district failed to comply with Education Law §2018(b); respondent board provided inadequate notice that certain candidates withdrew, thereby preventing others from submitting nominating petitions; the election was conducted negligently and the result does not reflect the will of the voters; some election inspectors signed certifications without examining the voting machines; and “election documents” were held in an office, unsecured, from May 17 to May 23, unavailable for review by the candidates. 

Petitioner also asserts that, at the Dryden Street School polling place, a voting machine malfunctioned in that the public counter showed 148 votes, but 299 votes were tallied.  Petitioner claims that, if all 148 voters cast votes for 2 candidates, as permitted, only 296 votes would have been cast.  In addition, although not entirely clear as to location, petitioner appears to allege that a voting machine also malfunctioned also at the Park Avenue School polling place, claiming that the machine’s counter for respondent Pierce was misaligned, causing her to receive an extra 100 votes.  Petitioner also asserts that, upon a “random sampling” of absentee ballots, a recount from the Drexel Avenue School polling place revealed that they, too, were tallied incorrectly.  Petitioner seeks a recount of the voting machines, “canvass books” and absentee ballots, as well as an order setting aside the results of the election.

Respondents assert that the petition fails to state a claim upon which relief can be granted and that the election was properly conducted in all respects.  Respondents maintain that: the election was properly conducted “at large”; the district provided legal notices in local publications and on the district’s website regarding the extension of the time to submit nominating petitions, in accordance with Education Law §2018(d), due to the withdrawal of other candidates; no election documents were left unsecured and access to them was granted upon reasonable request; and petitioner’s unsupported allegation regarding a “random sampling” of absentee ballots is insufficient to establish any irregularities in the tally.

Regarding the alleged voting machine malfunctions, respondents deny that any machine counter was misaligned and, in any event, even if 100 votes were deducted from respondent Pierce, petitioner would not have won a seat in the election.  Respondents assert that petitioner has called into question only three votes cast at the Dryden Street School polling place – a number which would not affect the outcome of the election.  Respondents contend that petitioner failed to set forth sufficient facts to justify nullifying the election. 

Additionally, respondents claim that respondent Pierce was not personally served as required by Commissioner’s regulations and, thus, petitioner failed to properly join her as a necessary party.  Respondents request that the appeal be dismissed in its entirety.  Respondents Pierce and Campbell also request a certificate of good faith.

I will first address several procedural matters.  The parties submitted several letters subsequent to the submission of all pleadings, requesting their consideration and addressing, among other things, the timeliness, manner of service and scope of petitioner’s reply, as well as the propriety of substituted service of the petition upon respondent Pierce.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  Because the letters address procedural issues relating to the propriety of petitioner’s reply, as well as substituted service upon respondent Pierce, based on information not known prior to submission of such letters, I will consider them.  Therefore, respondents’ letters dated July 27, August 3, and August 19, 2011 and petitioner’s letters in response thereto, dated August 4, August 5 and August 22, 2011, are accepted.

With respect to the timeliness of petitioner’s reply, I note that a reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710). According to the affidavit of service filed with respondents’ answer, the pleading was served upon petitioner by mail on July 6, 2011.  Therefore, petitioner’s reply was required to be served no later than July 20, 2011.  The affidavit of service for petitioner’s reply indicates that it was served by mail on July 20, 2011.  In a letter dated August 19, 2011, respondents dispute such service, claim the reply was personally delivered after the deadline, and state that the envelope containing the reply bore insufficient postage and the stamps were not cancelled.  Although respondents’ letter states that a copy of the envelope was attached, none was submitted.  In light of petitioner’s sworn affidavit of service and the lack of any refuting evidence, I find that the reply was timely served.

However, the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Next, respondents object to service of the petition upon respondent Pierce by mail rather than by personal service.  Section 275.8(d) of the Commissioner’s regulations provides in pertinent part: “If an appeal involves the validity of a school district meeting or election ... a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent” (emphasis added)(see Appeal of Schultz, 48 Ed Dept Rep 70, Decision No. 15,796; Appeal of Duffy, 47 id. 86, Decision No. 15,634).  Section 275.8(a) of the Commissioner’s regulations requires, generally, that the petition be personally served upon each named respondent.

However, §275.8(a) of the Commissioner’s regulations provides, in pertinent part that, “if a named respondent cannot be found upon diligent search, ... [service can be made] as otherwise directed by the commissioner.”  On June 16, 2011, by fax to my Office of Counsel, petitioner requested, permission to effect alternate service upon respondent Pierce after unsuccessfully attempting to effect personal service upon her at various different times and on different days.  By letter dated June 16, 2011, petitioner received permission to serve respondent Pierce by regular and certified mail, return receipt requested.  Petitioner effected service, as approved, that same day.  It appears that respondent Pierce chose not to pick up the copy of the pleadings sent to her by certified mail.  I find that service upon respondent Pierce was proper and made in compliance with the alternative service petitioner was authorized to use pursuant to §275.8(a) of the Commissioner’s regulations.

Respondents also argue that petitioner should have continued to attempt personal service on respondent Pierce even after the pleadings were mailed to her, as directed in the June 16, 2011 approval letter.  According to the affidavits of service submitted by petitioner, an additional attempt at personal service was made on the evening of June 16, 2011, but was unsuccessful. Moreover, an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The last day to initiate a timely appeal was June 16, 2011.  Further attempts beyond that date would be untimely.  Therefore, as noted above, service was proper and I decline to dismiss the appeal for failure to properly serve respondent Pierce and join her as a necessary party. 

Nevertheless, the appeal must be dismissed.  Initially, I take judicial notice that the term of office at issue for respondents Campbell and Pierce concluded and the matter is, thus, academic (see e.g. Appeal of Budich and MacDonald, 54 Ed Dept Rep, Decision No. 16,774).  Moreover, petitioner has not established his claims.  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). 

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 Antaki and Mosman, 47 Ed Dept Rep 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.; Appeal of Marchesani, 44 id. 460, Decision No. 15,232).  Additionally, mere speculation as to the effect of alleged irregularities provides an insufficient basis on which to annul election results (Appeal of Crawford, et al., 47 Ed Dept Rep 413, Decision No. 15,739; Appeal of Kudlack, 45 id. 272, Decision No. 15,319).

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). 

Although petitioner alleges several irregularities regarding the conduct of the election, he fails to meet his burden of proving that any occurred or that such irregularity would have affected the outcome of the election.  Petitioner alleges, upon information and belief, that board member elections held “at large” are not properly authorized in the district.  Education Law §2018(b) authorizes a voter proposition permitting the election of board members “at large” rather than by specific seats.  Although no voter proposition has been submitted, respondent board’s district clerk avers that she located documentation, including minutes of the 1935 election, which she submitted, indicating that as far back as 1910 board members in the district have been elected “at large.”  Petitioner has the burden of proof and I cannot conclude on this record that elections “at large” were not authorized in the district.  Moreover, petitioner has not established that, had the election been for specific seats, the outcome would be different.

Petitioner has also failed to prove that respondent board did not comply with Education Law §2018(d) regarding the withdrawal of candidates from the election.  That statute permits a board of education, upon withdrawal of a candidate, to extend the deadline for filing nominating petitions.  The record indicates that, twice prior to the election, respondent board placed legal notices in local publications and on its website publicizing extensions of time due to candidate withdrawals.  Petitioner’s claim that respondent board did not adequately notify the community of such extensions lacks merit.

With respect to petitioner’s allegations of voting machine malfunction, such claims are also unavailing.  Although not entirely clear as to location, petitioner apparently claims that the voting machine counters for respondent Pierce on the machines at the Park Avenue School polling place were not properly aligned and that election inspectors differed on the tally of the votes, resulting in 100 additional votes for respondent Pierce.  He submits an affidavit from a poll watcher in support of his claim.  Respondents deny the allegations and submit affidavits by the district clerk and the chairperson of the election, who was present at the Park Avenue School polling place, disputing petitioner’s claims.  The election chairperson avers that the counters were properly aligned and there was no confusion as to the tallies.  She also avers that the poll watcher was not in a position to observe the counters at the time the machines were initialized.  Respondent also submits an affidavit from the president of the company that maintains and furnishes the voting machines attesting to their good working order both before and after the election. On this record, I cannot conclude that any irregularity occurred.  Moreover, as respondents correctly contend, even if 100 votes were deducted from the votes received by respondent Pierce, it would not change the outcome of the election.

Petitioner also claims machine malfunction at the Dryden Street School polling place.  He alleges that the public counter showed 148 votes, but that 299 votes were tallied.  Petitioner claims that, if all 148 voters cast votes for 2 candidates, as permitted, only 296 votes would have been cast – 3 fewer than the total tally.  Respondents admit that the public counter indicated that 148 voters cast votes but correctly points out that a difference of 3 votes does not affect the outcome of the election and provides no basis to nullify the result.

Petitioner claims that, although the election inspectors at each polling place signed the certification on the “Statement of Canvass for Voting Machines” pertaining to the machine counters, all did not actually examine the voting machines before certifying.  In support of his claim, he submits an affidavit from a poll watcher at the Drexel Avenue School polling place stating that, at the close of the polls, the machine counters were not read by both inspectors and “[n]o second independent validation by another Inspector took place.”  Petitioner provides no documentation pertaining to any other polling place.

Respondent argues, correctly, that there is no requirement that the election inspectors record the public counter at the close of the polls.  Pursuant to Education Law §2035, the inspectors must examine and determine that the counters are set at zero before a machine is used, but there is no requirement that the inspectors record the counters at the close of the polls (Education Law §2035[1]; Appeal of Diorio, 38 Ed Dept Rep 656, Decision No. 14,111).

Finally, petitioner alleges, in conclusory fashion, that a “random sampling” of absentee ballots and a “random survey” of poll inspectors and poll watchers revealed additional irregularities.  Petitioner sets forth no specific facts nor provides any evidence pertaining to those claims.  In similar conclusory fashion, petitioner claims that, after the election, “election documents” were held in an office, unsecured, and unavailable for review by candidates for six days.  Respondents deny the allegations and provide an affidavit by the district clerk in which she avers that all election materials were properly secured and that no request to review such materials was denied.  Petitioner has the burden of proof and provides no evidence to establish his claims. 

 On this record, petitioner failed to rebut the presumption of regularity in the conduct of the election.  Petitioner failed to establish that any irregularities occurred that affected the outcome of the election, were so pervasive that they vitiated the electoral process or demonstrate laxity in adherence to the Education Law.  Therefore, the appeal must be dismissed.

One administrative matter remains.  Respondents Pierce and Campbell request that I issue certificates of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify them for legal fees and the exercise of their powers or performance of duties as board members.  It is appropriate to issue such certification unless it is established on the record that the requesting board memebers acted in bad faith (Application of Wornum, 50 Ed Dept Rep, Decision No. 16,166; Appeal of Lilly, 47 id. 268, Decision No. 15,692; Application of Berman, 46 id. 378, Decision No. 15,537).  Since there has been no such finding, I find that respondents Pierce and Campbell are entitled to receive a certificate of good faith.

In view of the above disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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