Decision No. 14,345

(April 25, 2000)

MILLS, Commissioner.--Petitioners, residents of the Garrison Union Free School District, challenge the results of a special district meeting held by respondent. The appeal must be dismissed.

At a special district meeting on November 16, 1999, the voters approved two propositions. Proposition No. 1, approved by a vote of 620 "yes" to 530 "no", authorizes respondent "to construct additions to and reconstruct the Garrison Union Free School building, including site work and the acquisition of original furnishings, equipment, machinery or apparatus required for the purpose for which such addition and reconstructed building are to be used, at a maximum cost of $6,190,000"; to levy the necessary tax; and to issue bonds and notes, the principal amount not to exceed $6,190,000, and to levy a tax to pay the interest on such bonds and notes.

Proposition No. 2, approved by a vote of 569 "yes" to 566 "no", authorizes respondent, if Proposition No. 1 is approved by the voters, "to construct a gymnasium that is larger than that included in Proposition #1 by approximately 762 square feet, at a maximum additional cost of $100,000"; to levy the necessary tax; and to issue bonds and notes in the principal amount not to exceed $100,000, and to levy a tax to pay the interest on such bonds and notes.

Petitioners commenced this appeal through service of a copy of the petition upon respondent on December 13, 1999. On December 29, 1999, petitioners' request for interim relief staying respondent from issuing bonds in connection with the proposed construction projects pending a final determination in the appeal was denied.

Petitioners allege that pervasive irregularities in the conduct of the special meeting make it impossible to ascertain the will of the voters and affected the outcome of the election. Petitioners request an order annulling respondent's determination to accept the results of the special district meeting. Petitioners also request that respondent be directed to personally verify the residency of all registered voters and to prepare a specific list and map of residences in the district.

Respondent contends that the petition fails to demonstrate any wrongdoing by the board of education, the district clerk, the election inspectors or the superintendent of schools and that petitioners have failed to establish that the irregularities affected the outcome of the vote. Respondent also contends that the petition should be dismissed for failure to comply with the requirements of Commissioner's Regulations "275.5, relating to verification of pleadings and "275.10, for failure to provide any evidentiary proof of the petition's allegations. Respondent also contends that petitioners lack standing to advocate on behalf of the five individuals whose affidavit ballots were rejected by respondent. Respondent also contends that petitioner Chris Lombardi lacks standing to bring this appeal because he is not a qualified voter. Lastly, respondent contends that I lack jurisdiction to require the district to personally verify the residences of all registered voters in the district and to require the district to prepare a specific list and map in accordance with the Election Law.

Respondent contends that the petition should be dismissed for failure to meet the verification requirements of "275.5 of the Commissioner's Regulations, which requires that the petition be verified by the oath of at least one of the petitioners. The petition is in substantially the same format as prescribed in "275.6 of the Commissioner's Regulations and is verified by petitioner Alline Crowley as follows:

Respondent alleges that the verification is invalid because petitioner Crowley verified that she had personal knowledge of certain allegations when she could not have had such personal knowledge, since she was not present at the time the alleged incidents occurred. However, other than conclusory allegations that petitioner Crowley was not present during such incidents, respondent does not submit any proof to establish that the verification statement signed by petitioner Crowley is false. Therefore, I decline to dismiss the appeal for invalid verification.

Respondent contends that petitioner Chris Lombardi lacks standing to bring this appeal because he is not a qualified voter. Respondent submits the affidavit of its district clerk which states that Mr. Lombardi is not a registered voter of the district and that Mr. Lombardi's name is not listed on the county list used by the district on November 16, 1999. The affidavit further states that Mr. Lombardi did not personally appear before the district's board of registration on one of the registration dates held prior to November 16, 1999. Petitioners deny respondent's allegations but do not offer any proof in rebuttal.

Pursuant to Education Law "2014, a resident of a school district which provides for the personal registration of voters is eligible to vote only if that individual is registered to vote with either the school district or the county board of elections. However, a failure to register under Education Law "2014 does not mean that an individual is not a qualified voter under Education Law "2012, but rather that such individual is ineligible to vote at a particular meeting or election (Matter of Dreyer, 18 Ed Dept Rep 235, Decision No. 9823). Furthermore, an individual, as a resident of the district, may maintain an appeal with regard to the manner in which respondent conducted a special district meeting (Appeal of Gravink, 37 Ed Dept Rep 393, Decision No. 13,888; Appeal of Waitkins, 26 id. 263, Decision No. 11,751). Although the record indicates that petitioner Lombardi is not a registered voter, respondent presents no proof to rebut petitioners' allegation that he is a district resident. Therefore, I will not dismiss the petition with respect to petitioner Lombardi for lack of standing. I also note that it appears from the record that the names of three petitioners, Harpreet Gosal, Mary R. Harnett and Robert Harnett were misspelled in the petition, and the caption of this appeal has been corrected to so read.

Respondent also objects to the reply submitted by petitioners on the grounds that it is not responsive to respondent's affirmative defenses and contains additional information and allegations not contained in the petition. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Hollister, 39 Ed Dept Rep 109, Decision No. 14,188; Appeal of Krantz, 38 id. 485, Decision No. 14,077; Appeal of Rampello, 37 id. 153, Decision No. 13,830). The rationale for this procedural rule is that it is necessary to ensure an orderly framing of the issues (Matter of Handicapped Child, 24 Ed Dept Rep 41, Decision No. 11,308).

The reply includes two affidavits submitted in "Support of the Petition". These affidavits, for the most part, buttress the allegations in the petition or belatedly add assertions that should have been in the petition. Petitioners submit no proof to establish that this information was unavailable to them at the time the petition was served. Petitioners contend that the affidavits were submitted to respond to new material and allegations contained in paragraph 10 of respondent's answer. However, paragraph 10 of the answer merely admits or denies the allegations contained in paragraph 11 of the petition, and reiterates respondent's position, set forth in its papers submitted in opposition to petitioner's request for a stay, that John and Maureen Schapp voted by machine before the challenge to their qualification to vote was made and that, except for the Schapps, all persons on the county list who were allowed to vote are in fact residents of the district. The two affidavits go far beyond replying to such information. Accordingly, while I have reviewed petitioners' reply, including the affidavits and attached exhibits, I have not considered those portions that contain new information or materials which are not responsive to new materials or affirmative defenses set forth in the answer, or that buttress allegations in the petition or belatedly add assertions that should have been in the petition.

To invalidate the results of a school district election, petitioners must establish not only that an irregularity occurred, but that the irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal ofLawson, 38 Ed Dept Rep 713, Decision No. 14,124; Appeal of Chechek, 37 id. 624, Decision No. 13,943), 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 and Bd. of Ed., Glen Cove City School District, 112 AD2d 640). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Goldman, 35 Ed Dept Rep 126, Decision No. 13,487; Appeal of Roberts, supra). A school district election is presumed to have been legally conducted unless petitioners establish the contrary by competent evidence (Appeal of Ferro, 25 Ed Dept Rep 175, Decision No. 11,538). 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, Decision No. 12,564). Petitioners have the burden of establishing all the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Chechek, supra). Furthermore, the burden is on petitioner to allege and prove facts upon which relief may be granted, not on the respondent to rebut conclusory allegations (Appeal of Keiling, 25 Ed Dept Rep 122, Decision No. 11,517; Matter of Lawson, 24 id. 132, Decision No. 11,343). I find that petitioners have failed to meet their burden of proof.

Petitioners appear to allege a discrepancy between the fact that 1059 individuals are recorded as entering the voting booths, but only 1045 cast machine votes on Proposition No. 1 and only 1028 cast machine votes on Proposition No. 2. However, as respondent notes, voters are not required to vote on either or both propositions when they enter a voting booth and petitioners have failed to submit proof that the alleged discrepancy was due to a machine defect or other problem (see Appeal of Krantz, 37 Ed Dept Rep 257, 261-262, Decision No. 13,853).

Petitioners next allege that the district clerk and election inspectors permitted individuals to vote if their names appeared on the registration list provided by the county board of elections, even though the district lies partially or fully within several county election districts and the registration list provided by the county therefore included individuals who were not district residents. Petitioners further allege that poll watchers were not able to verify or disprove whether the address given for a voter was within the district because respondent failed to display or make available at the time of voter registration or on the day of voting a listing of properties within the district or a map indicating the specific streets and numbers of households within the district. Petitioners allege that 349 voters participating in the vote lived on streets which in part are not in the district, and that their votes cannot reliably be determined to be valid.

Although the Election Law imposes certain requirements relating to maps and lists of properties within an election district on other municipalities (see Election Law ""4-102, 5-204[1][b] and 5-502[1]), the Election Law does not govern the conduct of school district elections in central or union free school districts (Election Law "1-102; Appeal of Donnelly, 33 Ed Dept Rep 362, Decision No. 13,709; Appeal of Baker, 30 id. 228, Decision No. 12,443; Matter of Maier, 18 id. 292, Decision No. 9845). There is no requirement in the Education Law that a school district display or make available a listing of properties or a map of district residences and petitioners fail to cite any provision in the Election Law that is expressly made applicable to school districts and which would require that such map or listing be made available.

Furthermore, petitioners' allegation that unqualified persons were permitted to vote is merely speculation. Respondent denies such allegation and petitioners provide no proof that any of the 349 persons voting who live on streets that extend beyond the district's boundaries, actually live outside the district. Mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Krantz, 37 Ed Dept Rep 257, Decision No. 13,853; Appeal of Kushner, 36 id. 261, Decision No. 13,719). In the absence of such proof, the election will not be set aside (Appeal of Kushner, supra; Appeal of Ben-Reuben, 33 id. 299, Decision No. 13,055).

Nor is there any indication that petitioners made any timely challenges with respect to the qualifications of such voters. Any qualified voter may challenge, either prior to or at the district meeting, the qualifications of any other voter (Education Law ""2015[3] and 2019). Challenges to the qualifications of a voter must be made no later than the time the voter appears at the polls to vote (Appeal of Fraser-McBride, 36 Ed Dept Rep 488, 495, Decision No. 13,783). A person who has the right to challenge a voter and permits him to vote without such challenge, is not allowed to object to such voter's participation (Appeal of Horton, 35 Ed Dept Rep 168, Decision No. 13,503). The rationale for this rule is set forth in Matter of Kavanaugh, 5 Ed Dept Rep 19, 25-26, Decision No. 7539:

Respondent submits the affidavits of its district clerk and an election inspector which indicate that the voter registration books were made available, pursuant to Education Law "2015, during November 10 through 16, 1999 for review by any qualified district voter; that a Putnam County board of elections list of registered voters was also available for review during that time; that several individuals who opposed the building project, and who were poll watchers at the special district election, had spent several days reviewing the registration books during this period; that on the day of the vote the poll watchers were seated at a table located no more than five feet from the registration table; that at no time did the poll watchers state to the district clerk that they were unable to hear voters give their names to the election inspectors and poll clerks or state to the clerk that they were unable to do what they wished to do while at the polling place; and that no timely challenges were made against any individual who appeared to vote. It thus appears from the record that the poll watchers had the opportunity to, and did in fact, examine the pool of potential voters through the district voter registration books and the county board of elections list made available during November 10 – 16, 1999, and nevertheless made no timely challenges. Action taken at a district meeting or election will not be set aside merely on the basis of a claim that illegal votes may have been cast, where no challenges were made and no proof is offered that illegal votes were actually cast (Matter of Burley, 18 Ed Dept Rep 233, Decision No. 9822).

Petitioners next allege that the district's roll of voters, dated November 16, 1999, inadequately identified eligible voters in that 2 voters listed had no address, 15 were listed with a post office box number instead of a residence address, 2 were listed as only "R.D.2", and 987 were identified only by street instead of street and house number. Respondent contends that while the poll list may contain certain inadequacies, they are minor and the poll list fulfilled its primary purpose of recording those who actually voted. Education Law "2029 requires the district to maintain a poll list containing the name and legal residence of every person whose vote is received at a district meeting or election. While it appears that the addresses of a number of voters were inadequately listed, petitioners provide no proof that the lack of addresses affected the outcome of the vote. Defects in the poll list, absent proof that such defects affected the outcome of the election, are insufficient to invalidate the results of an election (Appeal of Demos, 34 Ed Dept Rep 54; Decision No. 13,232; Appeal of Roberts, supra). Petitioners offer no proof that such voters were unqualified to vote, nor does the record indicate that timely challenges were made with respect to their qualifications.

Petitioners also allege that respondent acted improperly in failing to provide the poll watchers with copies of the poll list pages until after the individuals on each page had already voted and in failing to provide the poll watchers with the name and address of the voter prior to the voter entering the booth. However, these allegations were first raised in two affidavits submitted with petitioners' reply, and do not appear in the petition. As indicated above, a reply may not raise new grounds for relief, buttress allegations in the petition or add assertions which should have been included in the petition, and therefore I will not consider these new allegations (Appeal of Carlson, et al., 37 Ed Dept Rep 351, Decision No. 13,877; Appeal of Walsh, 34 id. 544, Decision No. 13,405). In any event, I note that whether or not a poll list is made available for inspection on the day of the election is generally a matter within the discretion of the district (Appeal of Walsh, supra; Appeal of Schneider, 29 Ed Dept Rep 151, Decision No. 12,249).

Petitioners allege that respondent and the county board of elections did not update their registration cards and lists to reflect the recent issuance of new house numbers and, in many cases, new street names as part of the organization of an emergency services system. However, petitioners have failed to establish that this failure affected the results of the election. While new house numbers or street names may have been issued, petitioners' contention that the lack of residence identification was so pervasive that it was impossible for poll watchers to challenge unqualified voters is speculative and conclusory and petitioners fail to provide proof that unqualified voters were able to vote.

Petitioners also allege that 3 specific voters (John Schapp, Maureen Schapp and Ed Vrooman) do not reside within the district and that since Proposition No. 2 was approved by only 3 votes, this is sufficient to void the vote on that proposition. Education Law "2012 requires a person to be a resident of a school district for 30 days to qualify to vote in any election in that district. Regardless of whether or not Mr. Vrooman or the Schapps are residents of the district, it appears from the record that no timely challenges were made as to their qualifications, and therefore petitioners may not object to their participation in the vote (Appeal of Fraser-McBride, supra; Appeal of Horton; supra; Appeal of Kavanaugh, supra). As noted above, the voter registration books and the county board of elections list of registered voters were available for review by any qualified district voter from November 10 through 16, 1999.

Petitioners allege that two election inspectors presented appearances of impropriety because they are closely affiliated with the district: one inspector was board of education president until June 30, 1999; and another is currently employed by the district. Petitioners allege that when a challenge was made to voters living on Sprout Brook Road, the election inspector who was recently board president replied "It's too late, they've already voted." Petitioners also allege that despite requests, respondent did not advertise the position of election inspector to open applications to the general public.

There is nothing in Education Law "2025, or other provisions of the Education Law, that requires a school district to post or advertise the positions for election inspectors, or that prohibits a former board president or a district employee from serving as an election inspector (Appeal of Bleier, 32 Ed Dept Rep 63, Decision No. 12,759). The record indicates that respondent, at the request of a board member, appointed a district resident, Susan Tudor, to act as an alternate election inspector at the November 16, 1999 vote, but that she subsequently informed the district clerk that she would not be able to serve.

Furthermore, I do not find from the record before me that the inspectors have acted inappropriately. Petitioners make no specific allegations of impropriety by the election inspectors other than with respect to the challenge to voters living on Sprout Brook Road. However, it appears from the record that the election inspector was correct to refuse the challenge to voters living on Sprout Brook Road because such challenge was made after the voters had voted. Education Law "2019 requires that a challenge be made no later than the time the person offers to vote (Appeal of Fraser-McBride, supra). Furthermore, even if the election inspectors acted improperly or presented the appearance of impropriety, petitioners have failed to establish that this affected the result of the election. In addition, to the extent petitioners seek to affect the ability of the election inspectors to continue in such capacity, the election inspectors are necessary parties to this appeal and petitioners' failure to join them as respondents requires dismissal of such claims against the inspectors (Appeal of Linville, 38 Ed Dept Rep 464, Decision No. 14,073).

Petitioners allege that respondent's rejection of the affidavit votes of four voters unreasonably deprived them of their right to vote, because these voters were, in fact, registered through the Department of Motor Vehicles pursuant to Election Law "5-212, even though their names did not appear on the county list of registered voters. I agree with respondent's contention that petitioners lack standing to raise issues relating to the rights of other voters. An individual may not maintain an appeal pursuant to Education Law "310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil or property rights (Appeal of Kackmeister, 39 Ed Dept Rep , Decision No. 14,285); a petitioner lacks standing to assert the rights of others (Appeal of Schuler, 37 Ed Dept Rep 512, Decision No. 13,915). In any event, the affidavit of the district clerk states that he determined that such individuals were not in fact registered to vote and that their affidavits were therefore properly rejected. If it is determined that a voter who cast an affidavit ballot was not registered, the ballot may not be counted (Appeal of Vaughan, 33 Ed Dept Rep 189, Decision No. 13,020). Petitioners present no proof to rebut the district clerk's determination that the individuals casting the affidavit ballots were not registered voters. Petitioners also present no proof that the results of the elections were affected by the exclusion of such persons from voting. Accordingly, in addition to lack of standing, petitioners' allegations with respect to this issue must also be dismissed on the merits.

Petitioners allege that the ballot is defective in that its language is confusing and misleading and fails to specify in Proposition No. 1 the square footage for the gymnasium addition described in Proposition No. 2. Respondent submits the affidavit of its superintendent of schools which states that the district sent out two mailings to district residents explaining the building projects; established a telephone "Referendum Hotline" to answer questions on the projects; and held a public information meeting on November 3, 1999, which included the district's architects. Upon the record before me, I find no basis to invalidate the results of the vote based upon the wording of the propositions. Respondent submits the affidavit of its district clerk in which he states that he arrived at the school at 5 a.m. on the day of the election, that he remained at the polling place throughout the day and that at no time did a voter state that he or she was confused or misled by the wording of the propositions or prevented from voting as they wished. Petitioners offer no proof that any voters were confused or mislead in any way by the language of the propositions and fail to establish that the results of the election were affected by such language (see Appeal of Harwood, 36 Ed Dept Rep 499, Decision No. 13,785; Appeal of Maillard, 35 id. 229, Decision No. 13,526).

Petitioners also allege, on information and belief, that numerous buff registration cards have the same date for first-time voting and for registration. Education Law "2014(2) provides that voter registration may not take place less than five days preceding the election. The district clerk and the election inspector, in their affidavits, state that if no buff registration card had

been prepared prior to the day of the vote for a district resident listed on the county board of elections registration list, the election inspector would complete a new buff registration card. The clerk further states that the date of registration listed on the card is simply the date on which the district board of registration or the election inspector placed the card in the district registration books; therefore, the fact that a card had November 16, 1999 as the date for the first time voting and the date of registration does not mean that the individual was registering for the first time on November 16, but merely indicates that November 16 was the date that a card was completed, in this instance, for a previously qualified and registered voter. I note that district residents whose names appear on the county board of elections' register are registered to vote in the district pursuant to Education Law "2014 and must be allowed to vote (Appeal of Breud, et al., 38 Ed Dept Rep 748, Decision No. 14,133; Appeal of Hennessey, 37 id. 480, Decision No. 13,909). Respondent also submits the affidavit of an election inspector which states that the election inspectors updated the buff registration cards for those voters who knew the new emergency services or "911" address designated for their residence. Petitioners fail to rebut the explanations of the district clerk and election inspector and, in any event, fail to establish that any individuals were improperly registered and that respondent's issuance of the buff cards affected the outcome of the vote.

Since the appeal must be dismissed for the above reasons, it is unnecessary for me to consider respondent's remaining affirmative defense that I lack jurisdiction to grant petitioner certain specified relief relating to verification of the residencies of registered voters and the preparation of a specific list and map in accordance with the Election Law.

THE APPEAL IS DISMISSED.

END OF FILE

---