Decision No. 12,885

(February 11, 1993)

Behrens, Loew & Cullen, Esqs., attorneys for petitioners, William

M. Cullen, Esq., of counsel

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondents, Jerome

H. Ehrlich, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal from respondent Vogel's election to the board of trustees (the "board") of the Syosset Public Library (the "library"). The appeal must be sustained.

On May 13, 1992 respondent board of education of the Syosset Central School District (the "district"), in conjunction with its annual meeting, conducted a budget vote and election on behalf of the library (Education Law '260[7]). Although one vacancy existed on the library board, neither the district nor the board received any nominating petitions for the position (Education Law '260[8]).

In addition to the library board position, six candidates were competing for three vacancies on the district's board of education. Their names, along with space for a write-in candidate, all appeared under the heading, "Member of Board of Education - Three Year Term - Vote for Three." The ballot also asked voters to vote on the school district and the library budgets, but did not provide any opportunity to vote for the vacancy on the library board. One voter who submitted an absentee ballot, however, created a box on his ballot labeled "write-in vote for library board," and therein wrote "Neil Vogel." This was the only vote cast in the election for the office of library trustee. The district subsequently certified respondent Vogel as duly elected to a five-year term on the library board of trustees, commencing July 1, 1992.

Petitioners commenced this appeal on June 12, 1992. On June 23, 1992, I granted their request for a stay, restraining respondent Vogel from taking office pending a decision on the merits (8 NYCRR 276.1). None of the respondents have submitted answers to the petition. Consequently, the statements contained in the petition are deemed to be true (8 NYCRR 275.11).

Petitioners argue that the district erred by failing to provide voters with the opportunity to cast write-in votes for the office of library trustee. I agree. The Education Law provides:

The record confirms that the district failed to provide space for write-in votes for the office of library board trustee.

Petitioners have submitted affidavits from several qualified voters stating that, had they been afforded the opportunity to cast write-in votes for the office of library trustee, they would have done so, and would not have voted for respondent Vogel. These affidavits demonstrate that the results of the election for library board trustee would have been different, but for the irregularity described above. The election of respondent Vogel, therefore, must be set aside (Appeal of Baker, 30 Ed Dept Rep 228).

The library board indicates that it intends henceforth to conduct all special district meetings and elections for the library (Education Law '260[7],[9]). I will therefore authorize the library board to conduct a new election for the office of library board trustee. If the library board chooses not to do so, respondent district shall notice and conduct the election, pursuant to Education Law '260(7).

THE APPEAL IS SUSTAINED, and

IT IS ORDERED that the May 13, 1992 election of Neil Vogel to the office of library board trustee is hereby annulled; and

IT IS FURTHER ORDERED that a new election shall be held for the office of library board trustee, to be noticed and conducted by petitioner board of trustees of the Syosset Public Library or, in the library board's discretion, by respondent board of education.

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