and

Decision No. 12,815

(September 25, 1992)

George Shebitz, Esq., attorney for respondent

SOBOL, Commissioner.--These appeals are decided together because they both involve the results of an election conducted by respondent on May 6, 1992. The issues of law and fact are the same. Petitioners seek the annulment of the election. The appeals must be dismissed.

Petitioners were unsuccessful candidates for election to the Board of Education of the Valley Stream Union Free School District. Residents were permitted to vote at four different locations. However, at one of the locations, the keys for the voting machines were unavailable until approximately eight o'clock in the morning. Prior to the voting machines being opened, voters presenting themselves at that location were given the option of using a paper ballot. Four voters elected not to vote by paper ballot and advised the poll watchers that they would return later.

At approximately the same time, petitioner DeMott informed respondent's counsel that his name was incorrectly listed on the voting machine as "Richard DeMott" instead of "Robert DeMott". Petitioner DeMott's name was corrected on the voting machines, but a total of 91 votes were cast before the correction was completed.

The election results were:

Eleanor Sciglibaglio 756

Anthony Iadevaio 684

Frank Nuara 585

Leslie Guttman 528

Robert DeMott 518

This appeal ensued.

Petitioners maintain that because voting machines were unavailable for a period of time at one location and because petitioner DeMott's first name was incorrectly listed on the voting machines for a period of time, the election must be annulled and a new election ordered. Petitioner Guttman also contends that because two candidates filed incomplete statements of election expenditures, the election must be annulled.

Before addressing the merits of this appeal, it is necessary to review a procedural issue. Petitioners' appeals must be dismissed because of their failure to comply with '275.8(d) of the Regulations of the Commissioner of Education, which provides:

Petitioners have failed to serve the successful candidates from the election who are necessary parties to these appeals and have failed to join them as respondents. Consequently, petitioners' challenges to the election results must be dismissed (Appeal of Weaver, 28 Ed Dept Rep 183; Matter of Baldwin Assn. of Indep. Taxpayers, 22 id. 282).

Even if petitioners had joined all necessary parties, the appeals would be dismissed on the merits. 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); were 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 compromised (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). 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). Upon the record before me, I find petitioners have failed to meet that burden.

In connection with the four voters who chose not to use paper ballots and expressed their intent to vote later when the voting machines were opened, there is nothing in the record to indicate whether those individuals returned to vote or for whom they voted. With respect to the 91 residents who voted before petitioner DeMott's first name was corrected on the voting machine, petitioners likewise have failed to offer any evidence to show that those voters were confused by the incorrect first name and would have voted for him in sufficient numbers to change the outcome of the election but for that mistake.

The record indicates that the statement of election expenditures filed by petitioner DeMott was not dated or notarized. The statement filed by another candidate, Frank Nuara, was also not dated. The fact that a candidate has filed an incomplete statement of election expenditures is insufficient basis for setting aside the results of an election (Matter of Pendergast, 20 Ed Dept Rep 127).

Finally, to set aside the results of a school district vote, petitioners 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). Petitioners have failed to meet that burden.

THE APPEAL IS DISMISSED.

END OF FILE

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