Decision No. 14,195

(August 19, 1999)

CATE, Acting Commissioner.--Petitioner, a resident of the Roosevelt Union Free School District (the "district"), challenges the conduct of the district's annual election and budget vote on May 18, 1999. The appeal must be dismissed.

On May 18, 1999, the district's polls opened for voting at 7:00 a.m. The voters were to decide on a budget and elect two school board members. At approximately 11:00 a.m., the district's central office received a threat that a bomb would detonate at the Roosevelt Junior-Senior High School (the "building") after 2:00 p.m. In response, the district evacuated the building at 1:25 p.m. to allow the Nassau County Police Department to conduct a search. Once the search was completed and the building declared safe, it was reopened. The building was closed for a total of 30 minutes.

During the closure, voting was suspended. All voters, election clerks, inspectors and the district clerk were required to leave the building. Prior to leaving, officials locked and secured all the voting machines. All other election materials were left in place to facilitate a speedy resumption of voting once the building was reopened. Voting at the building was suspended for a total of approximately 50 minutes before the machines were unlocked and voting allowed to resume. The polls were then continuously open for the next six hours, closing at 8:00 p.m. that evening.

The superintendent indicates in a letter appended to the petition that voters defeated the budget by a tie vote of 154-154. There is no information in the record reflecting the results of the school board election. This appeal ensued. On June 16, 1999, Commissioner Mills denied petitioner's request for interim relief pending a determination on the merits.

Petitioner alleges that he and other community residents were deprived of their right to vote when voting was suspended. In support of his claim, petitioner attaches only unsworn statements of alleged district residents, contending that they were afraid to come to the school to vote because they had heard there was a bomb threat. He requests that I annul the election results and order a new election.

Respondent generally asserts that the petition fails to state a claim. Respondent concedes that voting was suspended during the bomb threat, but avers that only about one dozen residents arrived at the building during the threat, and all were advised that they would be permitted to vote when the polls reopened.

Petitioner has the burden of establishing all the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Adams, 38 Ed Dept Rep 549, Decision No. 14,091; Appeal of Pickreign, 28 id. 163, Decision No. 12,067). To overturn an election, petitioner must prove improper conduct on the part of respondent such as a violation of the Education Law or Commissioner's regulations (Appeal of Ponella, 38 Ed Dept Rep 610, Decision No. 14,103; Appeal of Adams, supra; Appeal of Chechek, 37 id. 624, Decision No. 13,943). Petitioner must also establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, 32 AD2d 990, aff'd, 26 NY2d 709; Davis v. Commissioner of Education, 189 AD2d 1046; Appeal of Adams, supra), were so pervasive that they vitiated the electoral process (Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162); Matter of Gilbert, 20 id. 174, Decision No. 10,366), 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, Decision No. 11,356, aff'd sub nom, Capobianco v. Ambach, 112 AD2d 640). 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 Ponella, supra; Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483, Decision No. 12,177).

Petitioner has failed to carry his burden. First, he has not demonstrated any irregularities in the conduct of the election (Appeal of Schuler, 37 Ed Dept Rep 512, Decision No. 13,915). According to the Department's Revised Bomb Threat Response Guideline, a school district has responsibility to ensure the safety of the students and other school occupants upon the receipt of a bomb threat. If a threat indicates that a bomb is in a school building, evacuation is necessary, unless the building has been previously inspected and secured as described within the Guideline. Given the potential for serious consequences associated with a bomb threat, I find that district officials acted prudently by temporarily closing the polls for 50 minutes to allow the police to secure and search the building. I further find that petitioner failed to provide any evidence that district officials misinformed voters about the voting. The dozen or so voters who were turned away were asked to return later. While no broader announcement was made to the community at large, the polls were closed so briefly that an announcement of the threat was not reasonably practicable.

Moreover, petitioner has not demonstrated by competent proof that the bomb threat and the district's response to it had any effect on the outcome of the election. First, petitioner fails to allege in the petition or supporting exhibits the margins of victory for the two individuals elected to the board, or provide any proof that those results would have been different but for the suspension of the voting.

With respect to the budget, it is true that one more vote in favor of the budget would have resulted in its passage. However, petitioner offers no proof that the closure of the polls prevented that winning vote from being cast. Petitioner alleges that he personally did not exercise his right to vote, but never affirmatively states that he would have voted in favor of the budget had he an opportunity to do so. Nor does petitioner show that he tried to vote but was turned away, that he tried to phone the school to learn the status of voting, or that the district took any action whatsoever to interfere with his franchise.

Moreover, petitioner merely speculates that other voters were prevented from voting. In fact, those few residents who actually arrived when the polls were closed were instead asked to return later, when they could vote. None of them have submitted affidavits indicating that they were prevented from voting, and that they would have supported the budget. Finally, the statements petitioner does present are insufficient because they are unsworn, and indicate only that certain individuals surmised they would not be allowed to vote. There is no evidence that those voters made an effort to vote and were turned away by the district.

Finally, I note that the school district has the authority under law to submit the defeated budget to the voters for a second vote, at which time those individuals believing themselves disenfranchised in the first election may participate.

THE APPEAL IS DISMISSED.

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