Decision No. 13,405

(April 20, 1995)

Jack J. Sissman, P.C., attorney for petitioners

Bellcourt and Bartlett, Esqs., attorneys for respondents, George R. Bartlett, III, Esq., of counsel

SOBOL, Commissioner.--Petitioner and approximately 288 other residents appeal the results of a special election to merge the Richmondville Central School District and the Cobleskill Central School District. The vote in question was held on May 4, 1993 pursuant to Education Law '1803-a. The merger was approved in the Cobleskill Central School District by 611 votes and in the Richmondville Central School District by 30 votes. Petitioners challenge only the results of the vote held in the Richmondville Central School District. The appeal must be dismissed.

Before reviewing the merits, I must address several procedural issues raised by respondents. First, respondents contend that petitioners fail to set forth facts sufficient to state a claim upon which relief may be granted. Section 275.10 of the Regulations of the Commissioner of Education provides that a petition:

In this case, the allegations were specific enough to enable respondents to submit a detailed answer. In addition, petitioners have clearly stated the relief requested -- nullification of the special election. Accordingly, I decline to dismiss the petition as violative of '275.10.

Respondents also assert that petitioners failed to properly serve a copy of the petition upon them in conformity with '275.8(d) of the Commissioner's Regulations. However, '275.8(a) provides that service upon a board of education may be made by personally delivering a copy of the petition to either the district clerk, any trustee or member of the board of education, the superintendent or a person in the superintendent's office who has been designated by the board of education to accept service. Petitioners submitted an affidavit from their attorney which indicates that the attorney personally served a copy of the petition on the district clerks of each school district. Accordingly, I find that each board of education has been properly served, and I decline to dismiss the petition as violative of '275.8(d).

Respondents further contend that the petition should be dismissed because petitioners failed to name and serve necessary parties. Specifically, respondents contend that petitioners were required but failed to join the Board of Canvass, the district superintendent and the new Board of Education of the Cobleskill-Richmondville Central School District. Respondents argue that once the Cobleskill-Richmondville Central School District was laid out pursuant to Education Law '1801, the board of that new district became a necessary party. Furthermore, respondents contend that since I, as Commissioner, designated the Board of Canvass and the district superintendent to supervise the election, those parties also became necessary parties to this appeal. To the extent petitioners challenge the actions of the Board of Canvass, such board is a necessary party to this appeal. Furthermore, State Education Department records indicate that a special vote was held on May 27, 1993 to elect members of the new Board of Education of the Cobleskill-Richmondville Central School District. Because the interests of such school district may be adversely affected by the determination of this appeal, the Board of Education of the Cobleskill-Richmondville School District is also a necessary party, and petitioners' failure to join those entities requires dismissal (Appeal of Tomkins, Sr., 34 Ed Dept Rep 174). However, since petitioners do not challenge the actions of the district superintendent and her interests are not otherwise affected, I find that she is not a necessary party.

I also note that petitioners seek to raise new issues and allegations in their reply and reply affidavits which were not included in the original petition. Sections 275.3 and 275.14 of the Regulations of the Commissioner of Education set forth the scope of a reply in an appeal to the Commissioner and allow a response only to affirmative defenses and new material raised in an answer. The reply does not provide an opportunity to raise new grounds for relief (Appeal of Eastman Kodak Company, 32 Ed Dept Rep 575; Appeal of Alexandreena D., 30 id. 203; Appeal of Santicola, 29 id. 213) or to buttress allegations in the petition or add assertions which should have been included in the petition (Appeal of Eastman Kodak Company, supra; Appeal of Brousseau, 31 Ed Dept Rep 155; Appeal of Barbara P., et al., 30 id. 198; Appeal of Pronin, 27 id. 203). Therefore, I will not consider those portions of the reply that exceed that scope.

The petition must also be dismissed on the merits. There is a presumption of regularity in the conduct of an election (Appeal of Ben-Reuben, et al., 33 Ed Dept Rep 299). 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 (Appeal of Gilbert, 20 Ed Dept Rep 174), or that the irregularities demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the election provisions of the Education Law (Appeal of Levine, 24 Ed Dept Rep 172, aff'd sub nomCapobianco 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). 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). Petitioners have not met their burden of proof in this case.

Petitioners allege that "an Atmosphere of coercion and pressure including false and misleading information was conducted in the community immediately prior to the vote and that school teachers in the Richmondville Central School District utilized teaching hours to proselytize school children in favor of the merger vote urging them to get their parents to vote for the merger." However, the record lacks specific facts to support petitioners' allegations. Petitioners have only submitted a parent's affidavit which alleges that her children told her that teachers were spending class time to advocate in favor of the merger. The parent does not present any personal knowledge of what occurred and fails to allege any specific information, such as which teachers were involved or when the events allegedly took place. The Court of Appeals has determined that school district funds may not be used to exhort the electorate to support a particular position (Matter of Phillips v. Maurer, 67 NY2d 672). However, a board of education may distribute factual information which describes the impact of a vote (Appeal of Hebel, 34 Ed Dept Rep 319). From the information presented in this record, I am unable to determine whether respondent Richmondville Central School District acted improperly. Therefore, petitioners have failed to meet their burden of proof on this issue.

Petitioners also allege that the State Education Department representative who was responsible for the supervision of the vote was "not neutral and apparently favored the pro-merger vote." Petitioners' allegations are rebutted by the affidavit of the Department representative, as well as the affidavits of several other individuals, including persons who served on the Board of Canvass. Again, petitioners have failed to establish their burden of proof.

Petitioners further assert that "the ballot utilized was coercive in that it indicated that it came from the `Cobleskill-Richmondville Central School District'." The ballot, however, accurately refers to a vote to establish the Cobleskill-Richmondville Central School District pursuant to the procedures set forth in Education Law '1803-a. Moreover, the form of the ballot otherwise complies with Education Law '1803-a(2)(d). Petitioners offer no proof to establish that any voter or prospective voter was coerced or misled in any way by the wording of the ballot.

Petitioners next allege that "the process of the vote in the Richmondville Central School District was chaotic and rushed." Petitioners offer several individuals' affidavits which allege, in conclusory fashion, that the voting process was chaotic and rushed. Those statements are rebutted, however, by respondents' affidavits which describe the voting process as orderly and proper. On the record before me, I find that petitioners have failed to meet their burden of proof on this issue.

Petitioners next contend that the vote must be overturned because no voters' list was available at the polling place. However, there is nothing in the Education Law which requires the availability of a voters' list at the polling place for a vote held pursuant to Education Law '1803-a. A voters' list would have been available only if a system of personal registration was in effect at the time of the election. Personal registration may only be instituted pursuant to Education Law '2014. That section provides that a board of education "may upon its own motion provide for the personal registration of voters at school meetings or elections in such district...." Since at the time of the vote the Cobleskill-Richmondville Central School District, as laid out pursuant to Education Law '1801, had no constituted board of education to adopt personal registration for the special election, there could be no voters' list.

Petitioners also maintain that the vote must be overturned because the registration book of voters was not readily accessible to poll watchers. The registration book signed by voters is a public document which must be made available for inspection and copying pursuant to Education Law '2116. Such list may be made available for inspection and copying during an election, if done in an evenhanded manner and without undue disruption of the electoral process (Appeal of Schneider, 29 Ed Dept Rep 151). The petition contains only allegations that poll watchers were denied access to the registration book. Since access to the registration book at the time of the election is within the discretion of the school district and can be denied to prevent undue disruption of the election, petitioners' bare allegations that poll watchers were denied access is insufficient to establish that respondent Board of Education of the Richmondville Central School District acted improperly.

Petitioners also allege that voters were not required to produce identification prior to voting. However, there is no requirement in the Education Law that voters at a special election held pursuant to Education Law '1803-a produce identification to vote. Education Law '2018-c provides that a school district, as an alternative voting procedure, may require all persons offering to vote at any school district election to provide a specified proof of residency and may request such persons to provide their signature, printed name and address. Section 2018-c is, however, discretionary and does not apply to a vote held pursuant to Education Law '1803-a. Rather, Education Law '2018-c refers to elections conducted by a school district, not elections conducted by a board of canvass and board of elections pursuant to '1803-a.

Petitioners further contend that poll watchers were denied a reasonable opportunity to challenge voters because of the haste with which votes were processed. Petitioners offer only conclusory statements in support of their contention, and respondents offer affidavits rebutting petitioners' allegation. Again, I find that petitioners have failed to meet their burden of proof on this claim.

Petitioners also maintain that more than 30 ineligible individuals were permitted to vote. Where, as here, there is no system of voter registration in place, an unqualified voter must be challenged pursuant to Education Law '2019. If challenged, the prospective voter must make a declaration, as specified in '2019, and will then be allowed to vote. The record shows that only three persons were so challenged. One of those persons did not vote. The other two signed the required declaration and were allowed to vote. In addition, respondents have provided affidavits from those two individuals in which they attest that each is a resident of the Richmondville Central School District and was qualified to vote in the special election. With regard to the remaining allegedly ineligible voters who were not challenged, when no timely challenge is made, the voter's qualifications may not later be challenged on appeal (Appeal of Fugle, 32 Ed Dept Rep 480; Appeal of Gibeau, 30 id. 279; Appeal of Tortorello and Bartnik, 29 id. 306; Matter of Regent, 12 id. 108). In any event, I note that of the 32 individuals petitioners allege were ineligible to vote, respondent supplies affidavits which effectively rebut petitioners' allegations as to 23 of those individuals, leaving 9 individuals remaining. Even if all 9 were ineligible to vote, petitioners have failed to establish that the results of the election would be affected, since the proposed merger passed by 30 votes in the Richmondville district.

Petitioners allege that 26 ballots were voided for inconsequential reasons where the voter's intent was otherwise clearly manifested. In support of that contention, petitioners submit the affidavit of a fellow petitioner who was also a member of the Board of Canvass. In that affidavit she alleges that she took issue with the rejected ballots because they were rejected for "picayune reasons," that most of the rejected ballots had pencil marks in the instruction part of the ballot and that the 26 rejected ballots clearly indicated the voters' preference. Respondents provide the affidavits of the chairperson and three other members of the Board of Canvass, as well as the affidavit of the State Education Department representative. Those affidavits rebut petitioners' allegations and establish that the ballots were properly rejected pursuant to Education Law '2034(3). Petitioners have the burden of establishing the facts upon which they seek relief (8 NYCRR 275.10; Appeal of Pickreign, supra) and have not met their burden of proof on this issue.

Petitioners contend that no adequate provisions were made for elderly or physically disabled individuals to vote by absentee ballot. However, Education Law ''2018-a and 2018-b vest the determination of whether to provide absentee ballots in the discretion of the board of education. As noted above, the Cobleskill-Richmondville Central School District, as laid out pursuant to Education Law '1801, had no constituted board of education to authorize the use of absentee ballots.

Moreover, as previously noted, the results of an election will not be disturbed in the absence of evidence of the probability that the results would have been different, but for the existence of the alleged irregularities (Matter of Boyes v Allen, supra; Appeal of San Remo Civic Association, Inc., 28 Ed Dept Rep 175). Even if the irregularities alleged by petitioners occurred, petitioners have failed to establish that the result of the vote would have been different, but for such irregularities.

For the reasons set forth above, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE

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