Decision No. 12,662

(March 5, 1992)

Giaccone & Giaccone, P.C., attorneys for respondents

SOBOL, Commissioner.--Petitioners appeal from the results of an election for membership to the board of education. Because the issues presented in petitioners' appeals are similar, I have consolidated them for decision. On the records presented, the appeals must be dismissed.

Petitioner Judith Ecker was an unsuccessful candidate for membership to respondent board of education in the election held on June 26, 1991. Petitioner

Andrew Solano is a resident of the school district. Petitioners contend that the election results must be set aside because respondent Jayne Bushmann, a successful candidate in the election, and others distributed a flyer containing allegedly false information concerning petitioner Ecker on the day of the election.

Respondents deny that the flyer contained false or misleading information and contend that petitioners have failed to establish that respondents' actions affected the outcome of the election. Respondents further contend that the election results should stand because the acts complained of are those of individual board candidates and do not involve any misconduct, impropriety or irregularity in the board of education's conduct of the election.

Before turning to the merits, I will address two procedural issues raised by petitioner Solano. Petitioner questions the validity of service of respondents' answer by mail. Petitioner indicates that the answer served upon him included a copy of the affidavit of service by mail. The affidavit of service was dated August 5, 1991 although the cancellation date stamped on the envelope received was August 6, 1991. Petitioner questions the validity of the affidavit of service since such affidavit must be completed after service by mail has been performed. While, technically, an affidavit of service should be prepared after service by mail, it is common practice for affidavits of service to be prepared simultaneously with service by mail. 8 NYCRR '275.8(b) provides that service by mail shall be complete upon deposit of the paper enclosed in a postpaid properly addressed wrapper, in a post office or official depository of the United States Postal Service. It is entirely possible that the answer was placed in a postal depository after the collection time and, therefore, not postmarked until the next day. In any event, petitioner Solano admits he received the answer, which establishes that service was in fact made. Petitioner has failed to establish that respondents' service of the answer was defective or that he was prejudiced by any alleged irregularity.

Petitioner Solano also contends that the school attorney's representation of both respondent board of education and respondent Bushmann is improper because it creates a conflict of interest. Petitioner's claim must be dismissed. Under Education Law '3811, an individual member of a board of education may be entitled to legal representation at school district expense in an appeal arising out of the board member's exercise of his or her powers or the performance of his or her duties. There is no evidence that the school attorney is representing respondent Bushmann at school district expense. Respondents have not requested that I make the certification required under Education Law '3811(1) for the costs of representation to be a school district charge, which means that the issue before me relates solely to the practice of law. An appeal to the Commissioner of Education pursuant to Education Law '310 or '2037 is not the proper forum for adjudication of issues of professional ethics on the part of the school attorney.

A school district election will not be set aside in the absence of proof that the alleged irregularities or misconduct affected the outcome of the election (Appeal of Como, 28 Ed Dept Rep 483); are so pervasive in nature as to vitiate the electoral process (Matter of Gilbert, 20 Ed Dept Rep 174); or that the irregularities demonstrate a clear and convincing picture of informality to the point of laxity with respect to the Education Law (Matter of Nicoletta, 7 Ed Dept Rep 115; Matter of Levine, 24 id. 172, aff'd subnom: Capobianco v Ambach and Bd. of Ed. Glen Cove City School District, 112 AD2d 640). Implicit in these decisions is a recognition that there are rare cases in which errors in the conduct of a school election have become so pervasive that the fundamental fairness of the election is vitiated (Appeal of Como,supra).

Petitioners have the burden of establishing the facts upon which they seek relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). While petitioners allege that the flyers contained false information concerning petitioner Ecker, respondent Bushmann denies petitioners' allegation and contends that the flyers presented accurate information concerning petitioner Ecker's fitness to serve on the board and her record on the safety of children in the district. Upon the record before me, I am unable to conclude that petitioners have established that the distribution of the election flyer warrants overturning the results of the election. Even if I were to accept at face value petitioners' contention that the flyer contained false information, petitioners offer only unsubstantiated speculation that voters were thereby dissuaded from voting for petitioner Eckert in sufficient numbers so as to result in her losing the election.

THE APPEAL IS DISMISSED.

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