Appeal of EDWARD A. BROWN, et al., from action of the Board of Education of the Ellicottville Central School District regarding a bond vote.

 

 (November 14, 2003)

 

Hodgson, Russ, LLP, attorneys for respondent, Karl W. Kristoff, Esq., of counsel

 

MILLS, Commissioner.--Petitioner Brown, a resident and taxpayer of the Ellicottville Central School District, and 29 other petitioners, challenge certain procedures in connection with a bond vote held on December 17, 2002.  The appeal must be dismissed.

On December 17, 2002, the Board of Education of the Ellicottville Central School District ("respondent"), conducted a special district meeting at which voters considered a proposition to authorize the expenditure of $6,350,000 for school improvement construction and equipment and the issuance of bonds to finance the project.  District voters approved the proposition by a margin of 613 votes to 381 votes.  This appeal ensued.  Petitioners" application for interim relief was denied on January 31, 2003.

Petitioners claim that a district newsletter unlawfully advocated passage of the bond vote, that respondent held a school concert on the same evening the vote was conducted, and that the concert was advertised by a selective mailing.  Petitioners further allege numerous irregularities at the polls on December 17, including claims of interference by students and concert attendees, a lack of handicapped access, electioneering by board members, voting by unqualified voters, and the refusal to permit voting by persons who were present and waiting at the time the polls closed.  In addition, petitioners allege numerous violations of the Election Law.

To invalidate the results of a school district election, petitioners must establish not only that irregularities occurred, but also 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 of Meyer, et al., 38 Ed Dept Rep 285, Decision No. 14,034; Appeal of Santicola, 36 id. 416, Decision No. 13,765), 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 subnom, 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).  Petitioners have the burden of establishing all the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Gravink, 37 Ed Dept Rep 393, Decision No. 13,888). 

As a threshold matter, 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 Crowley, 39 Ed Dept Rep 665, Decision No. 14,345; Appeal of Donnelly, 33 id. 362, Decision No. 13,709; Appeal of Baker, 30 id. 228, Decision No. 12,443).  Consequently, petitioners" complaints with respect to alleged violations of the Election Law must be dismissed.

Petitioners have submitted no affidavits from any voters, including themselves, supporting their allegations of other irregularities petitioners allege occurred at the polls.  In contrast, respondent presents the affidavits of its district clerk, an election inspector, and the custodian of the voting machines, all of which directly contradict petitioners" allegations.  The affidavit of the district clerk also contradicts petitioners" claim that a separate, selective mailing was made concerning the school concert held at the same time as the bond vote.  Petitioners have not submitted a reply.

Respondent does admit that it did not comply with Education Law "2025(3), which requires that in a union free or central school district there be two election inspectors for each voting machine.  In this case, there were three election inspectors and two voting machines.  However, where there is no proof that the failure to appoint the appropriate number of election inspectors affected the outcome of the election, the election should not be set aside (Appeal of Uciechowski, 32 Ed Dept Rep 511, Decision No. 12,903).  I remind respondent of its obligation to appoint a proper number of election inspectors in the future.

Petitioners challenge the following statement in the November 2, 2002 newsletter: "with . . . the unanimous support of the Board of Education, we feel the time is right to present the proposition to the voters."  I find that the reference to the board"s support is factual in that it indicates that the board unanimously decided to put the proposition to the voters.  Accordingly, the statement does not constitute impermissible advocacy (Phillips v. Maurer, 67 NY2d 672; Stern v. Kramarsky, 84 Misc 2d 447; Appeal of Boni, 41 Ed Dept Rep 214, Decision No. 14,666).

In sum, I find petitioners have failed to establish that any alleged irregularities actually affected the outcome, demonstrated laxity in adherence to the Education Law or vitiated the fundamental fairness of the election.

I have considered the parties" remaining contentions and find them without merit.

 

THE APPEAL IS DISMISSED.

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