Decision No. 13,853

(December 29, 1997)

Douglas Penny, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner, an unsuccessful write-in candidate in the May 20, 1997 election for one of two at-large seats on the Board of Education of the Hampton Bays Union Free School District ("respondent board"), challenges the election results. Petitioner received 502 votes compared to 672 votes for Jane Maloney and 990 votes for Christopher Garvey, who were declared winners of the election. Petitioner claims that voting irregularities concerning write-in votes and electioneering by an incumbent affected the outcome of the election. Respondent contends that petitioner has failed to prove that there were any irregularities in the voting and that even if there were, the outcome was not affected by the alleged irregularities. Respondent asserts that the election was properly conducted and that there was no electioneering. Respondent also argues that petitioner failed to join necessary parties and failed to state a cause of action. The appeal must be dismissed.

Petitioner served her notice of petition on June 19, 1997. Although she requested interim relief setting aside the results of the election, she failed to include the required notice of her request for a stay order pursuant to 8 NYCRR 276.1(b). Respondent served a verified answer on July 8, 1997. Petitioner then reserved her petition also on July 8 and included the notice of stay request. I denied petitioner's request for interim relief on July 28, 1997.

As a threshold matter, the petition must be dismissed for failure to join a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Williams, et al., 36 Ed Dept Rep 270; Appeal of Karliner, 36 id. 30; Appeal of Garard, 36 id. 15). Section 275.8(d) of the Commissioner’s regulations specifically provides, in pertinent part:

Petitioner challenges the election of Christopher Garvey and Jane Maloney and seeks a new election, which would clearly adversely affect their rights. Therefore, they are necessary parties and petitioner’s failure to join them requires dismissal.

Petitioner contends that when she reserved the petition with the notice of stay on July 8, she personally served Christopher Garvey and Jane Maloney, thus rectifying the failure to join them as parties. However, while the record contains an affidavit of service for the reserved petition pursuant to 8 NYCRR "275.9(a), the record is devoid of any affidavits demonstrating service on Mr. Garvey or Ms. Maloney. Accordingly, since there are no affidavits to verify that Mr. Garvey and Ms. Maloney were actually served and joined as parties, the appeal must be dismissed for failure to join necessary parties. Although not dispositive, I also note that petitioner failed to amend the caption of the petition to include Mr. Garvey and Ms. Maloney.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Analysis of election irregularities requires a two-part inquiry. Both prongs of this analysis must be satisfied for the Commissioner to disturb the outcome of an election (Appeal of Santicola, 36 Ed Dept Rep 416; Appeal of Kushner, 36 id. 261; Appeal of Goldman, 35 id. 126). First, petitioner must prove improper conduct on the part of the respondent, such as a violation of Education Law or Commissioner's regulations (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). Second, petitioner must establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, 301 NYS2d 664, aff'd 26 NY2d 709, 308 NYS2d 873; Appeal of Roberts, 33 Ed Dept Rep 601), were so pervasive that they vitiated the electoral process (Appeal of Roberts, supra; Matter of Gilbert, 20 Ed Dept Rep 174), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Matter of Levine, 24 Ed Dept Rep 172, aff'd sub nom Capobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 112 AD2d 640, 492 NYS2d 157). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of an election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483). Petitioner has the burden of establishing all the facts upon which he seeks relief (8 NYCRR '275.10; Appeal of Pickreign, 28 Ed Dept Rep 163).

Petitioner challenges the election of Mr. Garvey and Ms. Maloney based on several alleged irregularities. Petitioner claims to have received over thirty phone calls from district residents who complained that they could not vote for her because of difficulty in reaching the write-in box, which was at the top of the voting machine. She contends that based on a ratio used by retail stores of 10:1 for complaints, the total complaints would exceed 300. She alleges that no provision was made for "vertically challenged" voters and that requests for step stools were refused. In addition, voters were not informed about a booth for handicapped voters, which short-statured voters could have used. Petitioner contends further that the sample ballot did not show where the write-in slot was located, the instructions on the sample ballot were inadequate, there were no instructions about how to cast a write-in vote, and there were no signs and no pencils in the polling booth, thus eliminating the secrecy of the ballot because voters were forced to ask for a pencil and inquire how to execute their vote.

Regarding write-in votes, Education Law '2032(2)(e) provides:

Respondent asserts that it did provide voters with the opportunity to cast write-in ballots, as evidenced by the fact that over 500 voters cast write-in votes. It asserts that the location of the write-in slot under the last candidate’s name was intended for those districts using paper ballots, not voting machines. Nonetheless, respondent asserts that even if the write-in slot was not properly located, that is a technical violation which is de minimus in light of the fact that over 500 people were able to cast their vote. Further, it asserts that the custodian of the voting machines instructed the election inspectors on the procedures for casting write-in ballots and how to explain those procedures to voters, and all voters who asked received proper instructions.

Petitioner has failed to meet her burden of proof on this issue. Petitioner submits only four, unsworn letters, from four individuals who complained about the district clerk’s attitude, her failure to tie pencils in the voting booths and her failure to provide stools. These letters are insufficient in their proof and numbers, falling far short of petitioner’s unverifiable projection of 300 complaints. The petition consists of unsubstantiated allegations that unidentified and unspecified voters may have been dissuaded from writing-in their votes, or were uncertain whether their vote registered. There are no affidavits from any voters claiming that they were denied the opportunity to vote. Nor are there affidavits from voters who claimed their votes would have been different. SeeAppeal of Board of Trustees of the Syosset Public Library, 32 Ed Dept Rep 460; Appeal of Loriz, 35 id. 231.

I note that the write-in campaign was apparently mounted at the last minute. This may account for some of alleged problems of which petitioner complains. While respondent should make every effort to accommodate voters and the district clerk might have displayed a more helpful attitude, petitioner fails to demonstrate that the clerk or election inspectors actually thwarted voters from voting, failed to instruct or improperly instructed any voter inquiring as to the proper method to cast a write-in vote. Furthermore, even if respondent could have placed the write-in slot in a lower spot, there is simply no evidence to conclude that any alleged irregularity affected the outcome of the election. The evidence shows that over 500 voters did indeed cast write-in votes. With no evidence that any voter was actually prevented from casting write-in votes or that a lack of clear and specific labeling preventing the writing-in of votes, petitioner has failed to show that the outcome of the election was affected (Appeal of Santicola, 36 Ed Dept Rep 416).

Petitioner maintains that 1490 people voted, based on the counters on the voting machines. She claims that since every person could vote for two board members, the total votes should have been 2980. Since there were only 2146 votes cast for school board members, petitioner alleges that 834 votes are missing or not cast. She also claims that only 1421 votes were cast for the budget, leaving a discrepancy of 69 votes (1490 minus 1421). Petitioner’s allegation is purely speculative and defies logic. Not every voter always votes for every candidate. Moreover, some voters who vote for the budget may not vote for school board members, or vice versa. There is no way to extrapolate the 171 additional votes needed in petitioner’s favor from the number of voters present. It is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Kushner, 36 Ed Dept rep 261; Appeal of Young, 26 id. 272). Absent such proof, I will not set aside the election (Appeal of Kushner, supra; Appeal of Ben-Reuben, 33 Ed Dept Rep 299).

Petitioner also claims that improper electioneering occurred during the election. Petitioner claims that Ms. Maloney was permitted to sit in the polling place for the entire election, so that she was effectively campaigning in the polling place. She claims that the school board president was seen in the polling place with a clipboard, noting those who came to vote and discussing the names with Ms. Maloney. Petitioner alleges that this was improper and intimidating to voters. Petitioner also claims that the father of the school board attorney posted a sign for Jane Maloney on school grounds just as the polls opened, giving the impression that the school endorsed her candidacy.

Education Law "2031-a prohibits electioneering within 100 feet from the building where an election is held. Although petitioner submits a picture of a sign for Jane Maloney, she does not claim that it is within 100 feet and there is no way to discern its distance from the building. Thus, petitioner has not met her burden of proof on this issue. With regard to Ms. Maloney’s presence at the polling site, the statute does not specifically prohibit this. Nor has petitioner demonstrated that Ms. Maloney was actually campaigning or electioneering. Nonetheless, respondent should be sure to avoid even the appearance of impropriety in future elections.

Based on the foregoing, I find no basis to overturn the election. I have considered petitioner’s remaining claims and find them without merit.

THE APPEAL IS DISMISSED.

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