Decision No. 12,767

(July 31, 1992)

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent

SOBOL, Commissioner.--Petitioner appeals from the results of a special district meeting held on January 29, 1992, which approved a school reconstruction and construction program and bond issue. The appeal must be dismissed.

Respondent scheduled a special district meeting for January 29, 1992 to consider a proposition authorizing reconstruction and construction at its Hewlett Elementary School and High School at an estimated cost of $8,998,150. The proposition would authorize respondent to expend the monies in a capital reserve fund established upon the previous sale of a school site to finance the projects and the balance of the costs by the issuance of serial bonds not in excess of $6,498,150, and to levy a tax to pay the principal and interest of such bonds. The proposition was approved by a vote of 1,654 to 1,617. On February 13, 1992, respondent adopted a bond resolution consistent with its authority under the approved proposition.

Petitioner commenced this appeal by service upon respondent of a copy of the petition on February 25, 1992. Petitioner requests that I declare the election result null and void because of alleged violations and irregularities under the Education Law. Specifically, petitioner contends that respondent, in its conduct of the election, violated Education Law '2018-a by failing to post the lists of all persons issued absentee voter ballots at either one of the two polling places; by failing to have ballot boxes for absentee ballots at either polling place; and by having respondent's district clerk, instead of the election inspectors, count the absentee ballots. Petitioner also alleges that there were certain irregularities involving the absentee ballots, in that there were no signature cards in the register to which to compare the signatures on 100 absentee voter ballots; there were 20 absentee ballots that were not stamped with the date of arrival; that the vote of one individual who voted by absentee ballot was not recorded in the register; that the signatures in the register under the names of two individuals, one of whom voted by absentee ballot and one by voting machine, may have been signed by one individual; that the signatures of two other individuals in the register may have been signed by one individual; and that there is no listing on the absentee ballot list for one individual who voted by absentee ballot.

While respondent concedes that the absentee ballots were counted by the district clerk, and not by the election inspectors as required by Education Law '2018-a, respondent contends that the petition should be dismissed for failing to establish that the noncompliance with the statute, as well as the other alleged irregularities, affected the results of the vote.

The Commissioner of Education will not set aside the results of a school district vote in the absence of evidence of the probability that the alleged irregularities affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd. 26 NY2d 709; Appeal of Brower, 29 Ed Dept Rep 145), are so pervasive in nature as to vitiate the electoral process (Matter of Gilbert, 20 Ed Dept Rep 174); or that the irregularities demonstrated a clear and convincing picture of informality to the point of laxity with respect to the election provisions of the Education Law (Matter of Levine, 24 Ed Dept Rep 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, et al., 28 Ed Dept Rep 483). To warrant setting aside an election, the improprieties alleged must be substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46). Petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). Upon the record before me, I find petitioner has failed to meet that burden.

While it is undisputed that respondent's district clerk, rather than the election inspectors, tallied the absentee ballots in contravention of Education Law '2018-a, petitioner offers no proof that the absentee ballots were tampered with or otherwise miscounted. Respondent has provided the affidavit of its district clerk which indicates that, except for the provision that the election inspectors count the ballots, the provisions of '2018-a were otherwise complied with by the district clerk. The district clerk indicates that she prepared and maintained lists of applicants to whom absentee ballots were issued; that upon receipt she typed the date of receipt upon the lists; that she compared the signature of each voter voting by absentee ballot with the signature of the voter, if any, on the register of voters; that she marked the register to indicate the voter had cast an absentee ballot and signed her initials; that prior to the closing of the polls, and in private, she opened all the absentee ballot envelopes and removed the ballots without unfolding them so that no ballot could be associated with any envelope; that she proceeded to tally the absentee ballots and did not reveal the tally to anyone until after the polls closed; that she immediately placed all of the absentee ballots and absentee ballot envelopes under lock after the close of the vote and that she securely maintained, and continued to maintain, each and every absentee ballot and absentee ballot envelope received by her. The district clerk also indicated that on February 3, 1992 she recounted the absentee ballots and envelopes in petitioner's presence and reached the same results. Respondent has provided the original absentee ballots, and the district clerk's certification that such ballots are the original absentee ballots from the January 29, 1992 special meeting and that they have been under her exclusive control and custody at all times up to their transmission to me. After examining the ballots, I find no evidence of tampering and that the ballot totals coincide with the district clerk's tally on January 29, 1992.

Respondent acknowledges that the tallying of absentee ballots by the district clerk rather than the election inspectors violated the provisions of Education Law '2018-a. Respondent indicates it will adhere to the provisions of '2018-a in all subsequent elections. Since there is no proof in the record that the results of the vote were affected by respondent's permitting the district clerk, rather than the election inspectors, to tally the absentee ballots, I decline to set aside the results of the special election based on such irregularity.

As for petitioner's other contentions, I note that, contrary to petitioner's assertion, the district clerk indicates that the lists of persons to whom absentee ballots were issued were placed on the tables used by the voting inspectors and available for inspection at both the high school and middle school polling locations. Petitioner has offered no evidence to refute the district clerk's statement, and, in any event, there is no proof in the record that the election results were affected by the alleged failure to post the lists.

The district clerk also disputes petitioner's claim that there were no signature cards in the register to compare the signatures of 108 absentee voter ballots. The district clerk indicates that there were no cards for 73 of the absentee ballot envelopes because these absentee ballots were received from persons who were not personally registered with respondent's district, but who were registered with the county board of elections. The district clerk states that there were cards for the remaining 35 people and that petitioner likely overlooked the fact that the cards maintained for their signatures were filled up and brand new cards without their signatures had been placed in the registry book. Petitioner has offered no evidence to rebut the district clerk's statements. Therefore, I find that petitioner has failed to prove the irregularity occurred.

Because those 73 individuals were registered pursuant to the provisions of the Election Law, they were eligible to vote in the special district meeting (Education Law '2014(5); Matter of Ferraro, 24 Ed Dept Rep 275).

With regard to petitioner's allegation that respondent failed to have ballot boxes for absentee ballots at either polling place, respondent admits that no ballot boxes were provided, but contends that its district clerk handled the ballots in such a way as to assure voter anonymity. While ballot boxes should have been provided, there is no proof in the record that the failure to provide them affected the results of the election.

With regard to petitioner's allegation that 20 absentee ballots were not stamped with the date of arrival, I note that there is no provision in the Education Law that requires the ballots to be stamped with the date of arrival and, in any event, respondent's district clerk indicates she recorded on a daily basis the receipt of every absentee ballot envelope by typing the date of receipt on the list of absentee ballots issued. The record shows that the 20 absentee ballots that petitioner alleges were not stamped, were recorded on the list.

With regard to petitioner's allegations that there were certain irregularities including the failure to record the vote of one individual to vote by absentee ballot, the possibility that up to three individuals may have signed the voter register more than once during the vote, and that there is no listing on the absentee ballot list for one individual who voted by absentee ballot, the record fails to establish that any of these irregularities existed in fact. Even if the irregularities existed, petitioner has failed to prove that they affected the election results.

I have examined petitioner's remaining contentions and find them without merit.

To set aside the results of a school district vote, petitioner must demonstrate that the results of the vote do not accurately reflect the will of the voters (Appeal of Vecchio, 30 Ed Dept Rep 126). Petitioner has failed to meet that burden.

THE APPEAL IS DISMISSED.

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