Appeal of EDWARD DOWDELL from action of the Board of Education of the Plainedge Union Free School District regarding a budget vote.

Decision No. 15,348

(January 24, 2006)

Ingerman Smith, LLP, attorneys for respondent, Warren H. Richmond, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the accuracy of certain budget documents presented to the public by the Board of Education of the Plainedge Union Free School District ("respondent"). The appeal must be dismissed.

Prior to respondent's May 17, 2005 budget vote, a school budget notice was mailed to district voters. Respondent admits that the notice failed to accurately reflect the administrative cost component of the proposed budget. Voters rejected the proposed budget on May 17, 2005 and a re-vote was scheduled for June 20, 2005. The error in the administrative cost component was corrected in the notice for the June re-vote.

In early June 2005, respondent made available to the public an additional document summarizing its proposed budget in preparation for the re-vote. This document contained an arithmetic error in the total 2004-2005 revenues because a fund balance of $600,000 was listed but not computed in the total. Petitioner commenced this appeal on June 14, 2005, requesting that the vote on June 20, 2005 be stayed. Petitioner's request for interim relief was denied on June 20, 2005. On that date, the vote was held and the budget was again defeated.

The appeal must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).

Following the defeat of its budget on May 17, 2005, respondent prepared corrected budget documents for the June 20, 2005 budget vote. Petitioner requests that the June vote be delayed and that other actions take place prior to that vote. The budget re-vote was held on June 20, 2005 and the budget was again defeated. Thus, the vote petitioner seeks to prevent has already occurred and the documents petitioner challenges no longer have effect. Therefore, no meaningful relief can be granted, and the appeal must be dismissed as moot.

Even if the appeal were not dismissed as moot, it would be dismissed on the merits, to the extent petitioner challenges the budget votes. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also that the irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Brown, 43 Ed Dept Rep 231, Decision No. 14,980; Appeal of Stolbach, 43 id. 218, Decision No. 14,977) were so pervasive that they vitiated the electoral process (Appeal of Brown, 43 Ed Dept Rep 231, Decision No. 14,980; Appeal of Stolbach, 43 id. 218, Decision No. 14,977; Appeal of Laurie, 42 id. 313, Decision No. 14,867) or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Brown, 43 Ed Dept Rep 231, Decision No. 14,980; Appeal of Stolbach, 43 id. 218, Decision No. 14,977; Matter of Levine, 24 id. 172, Decision No. 11,356, affdsubnom, Capobianco v. Ambach and Bd. of Ed., Glen Cove City School Dist., 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 Brown, 43 Ed Dept Rep 231, Decision No. 14,980; Appeal of Stolbach, 43 id. 218, Decision No. 14,977; Appeal of Laurie, 42 id. 313, Decision No. 14,867).

Petitioner does not provide evidence that any individual would have voted differently but for the alleged irregularities, and the petition does not assert that any vote was affected by the alleged errors. In sum, petitioner has failed to establish that any irregularities actually affected the outcome of the election, were so pervasive that they vitiated the electoral process or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.

In light of this disposition, I need not address the parties' remaining contentions.

THE APPEAL IS DISMISSED.

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