Appeal of NEVILLE G. GEORGES from action of the Board of Education of the Uniondale Union Free School District, Emerson Mott and Casilda Roper-Simpson, regarding an election.

Decision No. 15,380

(March 21, 2006)

Ingerman Smith LLP, attorneys for respondent board, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for election to the Board of Education of the Uniondale Union Free School District ("respondent board" or "board"), appeals the conduct of a school district election. The appeal must be dismissed.

On May 17, 2005, the board held its annual meeting and election to vote on its annual budget and fill two board seats. The voting took place at two polling sites, Uniondale High School and Lawrence Road Middle School. Casilda Roper-Simpson and another individual competed for one board seat, to which Ms. Roper-Simpson was elected. Petitioner and two others, Emerson Mott ("Mott") and David Sweet, ran for the other seat then held by petitioner. Mott defeated petitioner by three votes. This appeal ensued.

Petitioner alleges that irregularities surrounding the election of Mott were so pervasive that they "violated" the electoral process and demonstrated a clear and convincing picture of informality. Specifically, he alleges that more than 50 persons were permitted to vote by machine, rather than by paper ballot although their names did not appear in the district's voting book, in violation of the Election Law. Petitioner also alleges that there was a 105-vote discrepancy between the number of voters who signed the voting book (1,184) and the total number of voters who voted by machine (1,289). Petitioner contends that one voter was not properly registered, that one paper ballot was not counted, and that two election inspectors were not properly appointed by the board.

Petitioner also alleges that there were certain irregularities involving the absentee ballots, in that the ballots were not opened in the presence of candidates, their representatives or election inspectors; that ballots were opened before the polls closed in violation of Education Law �2018-a(10); that residents of a certain geriatric center were not provided with absentee ballots; that the absentee ballot voting was not supervised by inspectors; and that nine absentee ballot envelopes were dated as of election day and four were not dated at all. Finally, petitioner alleges that literature advocating the election of Mott was improperly distributed. Petitioner asks that I overturn the election of Mott.

Respondent board alleges that petitioner fails to state a cause of action. It argues that petitioner has failed to establish that any alleged irregularities 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. Respondent board alleges that all voters, with the possible exception of one, were properly registered and qualified to vote. Respondent board contends that it had no legal responsibility to supervise the voting at nursing homes or adult care facilities and, to the extent that it did, its actions were not improper. Respondent board also alleges that its failure to approve two inspectors and the irregularities with respect to dates on absentee ballot envelopes had no impact on the election. Finally, respondent board admits that the Uniondale Teachers' Association ("UTA") improperly distributed literature advocating for the election of Mott but denies that it had prior knowledge of such activity and affirms that its superintendent immediately stopped such activity once he learned of it.

Petitioner requests permission to submit additional information pursuant to �276.5 of the Commissioner's regulations and respondent board submits a "supplemental response" to this request. Since petitioner's document contains unsubstantiated statements and materials that were available when the petition was filed, I have not considered it or the board's "supplemental response."

To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also that any irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162), were so pervasive that they vitiated the electoral process (Appeal of Brannon, 42 Ed Dept Rep 220, Decision No. 14,830; Appeals of Laskas-Gillespie and Warshaw, 40 id. 568, Decision No. 14,559; Appeal of Roberts, 33 id. 601, Decision No. 13,162), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Christe, 40 Ed Dept Rep 412, Decision No. 14,514; Matter of Levine, 24 id. 172, Decision No. 11,356, affdsubnom; Capobianco v. Ambach, 112 AD2d 640). Implicit in these decisions is the 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 Collins, 39 Ed Dept Rep 226, Decision No. 14,223; Appeal of Roberts, 33 id. 601, Decision No. 13,162; Appeal of Como, et al., 28 id. 483, Decision No. 12,177).

In addition, petitioner has the burden of establishing all the facts upon which he seeks relief (8 NYCRR �275.10; Appeal of Wierzchowski, 39 Ed Dept Rep 682, Decision No. 14,348). To warrant setting aside an election, petitioner must establish that the improprieties are substantial and not merely technical in nature (Appeal of Morris, et al., 37 Ed Dept Rep 590, Decision No. 13,936; Appeal of Taylor, 31 id. 46, Decision No. 12,564).

Petitioner first asserts that more than 50 persons were permitted to vote by machine, rather than by paper ballot even though their names did not appear in the district's voting book in violation of the Election Law. However, the Election Law does not govern the conduct of school district elections in union free school districts (Election Law �1-102; Appeal of Donnelly, 33 Ed Dept Rep 362, Decision No. 13,079; Appeal of Baker, 30 id. 228, Decision No. 12,443). Moreover, respondent board admits that 86 individuals whose names did not appear in the voter registration books were permitted to vote by machine after signing a "New or Reactivated Voter" registration form and after their eligibility to vote was verified by the Nassau County Board of Elections. The district clerk avers that she acted at the direction of the Board of Elections in permitting individuals to vote in accordance with this procedure. Since petitioner presents no evidence that this procedure was improper, I do not find that the district clerk acted improperly in this regard.

Petitioner also alleges a discrepancy between the fact that 1,289 individuals cast machine ballots, but only 1,184 individuals signed the voting books. The district clerk avers that she counted 616 signatures and found 617 votes on the public counters at the Uniondale High School polling place and that she counted 582 signatures compared to 672 votes at the Lawrence Road polling place. With respect to the apparent discrepancy of 90 votes at the Lawrence Road polling place she states that none of the 86 individuals who voted by machine after executing the "New or Reactivated Voter" form signed the voting books, reducing the discrepancy to five votes. While unfortunate, it is not unusual for discrepancies to exist between the machine count and the sign-in sheets at the conclusion of an election (Appeals of Laskas-Gillespie, 40 Ed Dept Rep 568, Decision No. 14,559; see e.g. Appeal of Diamond, 39 id. 541, Decision No. 14,304). However, the record contains no evidence that the outcome of the election was affected by the failure to maintain a completely accurate poll list.

Petitioner also contends that one paper ballot was not counted and that one voter was not properly registered. The district clerk avers that she was advised by election inspectors that no paper ballots had been cast. Since petitioner presents no evidence to the contrary, he fails to meet his burden in this respect (8 NYCRR �275.10). Respondent board concedes the possibility that one individual cast a vote but was not properly registered. The record does not indicate whether this individual voted for Mott. However, even if it had, the voiding of her vote would have been insufficient to affect the outcome of the election since Mott won by three votes. Nor is there any indication that petitioner made timely challenge with respect to the qualification of such voter. Any qualified voter may challenge, either prior to or at the district meeting, the qualification of any other voter (Education Law ��2015[3] and 2019). Challenges to the qualification 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). The person who has the right to challenge a voter and permits them 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).

Petitioner also alleges that two inspectors were not properly appointed by respondent board. Although the board admits that two unauthorized inspectors were involved in the election process, the record is devoid of any evidence that these individuals counted, altered or removed ballots or that they took any action which affected the election results.

Petitioner next alleges that absentee ballots were not opened in the presence of the candidates, their representatives, or election inspectors. Where a district provides for personal registration of voters, Education Law �2018-a(10) specifies the procedure for processing absentee ballots once they have been received at the polling place. This provision contains no requirement that they be opened in the presence of the candidates or their representatives. In addition, the district clerk avers that the absentee ballots were opened in the presence of two election inspectors, consistent with the provisions of Education Law �2018-a(10), and petitioner presents no evidence to the contrary. Moreover, the district clerk avers the petitioner and his representative were present at a re-canvass of the absentee ballots where they had an opportunity to examine and challenge such ballots, and petitioner failed to initiate a challenge at that time.

Although petitioner alleges, and respondent board admits, that the district clerk improperly opened and counted the absentee ballots before the polls closed, there is no evidence that this affected the election outcome. I remind respondent board, however, that it must strictly adhere to the provisions of Education Law �2018-a(10) when handling absentee ballots.

Petitioner further claims that respondent board failed to provide qualified disabled residents of a geriatric center with absentee ballots. The district clerk avers that permanently disabled voters who listed the geriatric center as their domicile were mailed absentee ballots and petitioner has not demonstrated, in the form of affidavits or otherwise, that any permanently disabled voter did not receive an absentee ballot.

Petitioner also alleges that absentee ballot voting at an extended care center was not supervised by inspectors and respondent board does not dispute this. Section 1501-c of the Education Law makes the provisions of �8-407 of the Election Law applicable to school district elections. Election Law �8-407 establishes requirements for the casting of absentee ballots at nursing homes and residential health care facilities, and provides for the supervision of the process by inspectors. However, the statute places the burden to supervise absentee ballot voting on the county and not the school district, a burden that respondent board alleges Nassau County has chosen not to accept. The record nevertheless shows that the district clerk attempted to supervise the absentee ballot voting at the extended care center and her attempt was rebuffed by a director of the facility. I do not find therefore, on the record before me, any improprieties on the part of respondent board with respect to this claim. Not only has petitioner failed to show that respondent board acted improperly, but he has also failed to establish that there were any irregularities with respect to absentee voting at the extended care facility that affected the outcome of the election.

Petitioner also alleges that four absentee ballot envelopes were missing dates and that nine envelopes were dated May 17, 2005, but collected by the district clerk on May 16, 2005. Education Law �2034(3) specifies the criteria under which ballots will be voided, and the circumstances described by petitioner do not meet these criteria. Moreover, the record reflects that all 13 ballots were returned to the district clerk by the statutory deadline and were submitted by eligible voters. Therefore, I find these improprieties technical rather than substantial in nature.

Petitioner has similarly failed to establish any grounds for relief on his claim that the UTA used school district mailboxes to solicit support for the election of Mott. Respondent board acknowledges that the UTA improperly distributed partisan material in teacher's mailboxes. There is no indication, however, that respondent board knew about the materials in advance or sanctioned their distribution. Nor is there any evidence that the materials were distributed at school district expense. The superintendent avers that upon learning of the existence of the material, he immediately wrote to the UTA president and advised him that the use of district mailboxes for partisan activities was prohibited and that such activity should stop immediately. Under these circumstances, I find that petitioner has not proven that respondent board engaged in any partisan activities sufficient to overturn the election (Appeal of Huber, et al., 41 Ed Dept Rep 240, Decision No. 14,676).

Petitioner has not established that the irregularities in this case affected the outcome of the election, were so pervasive that they vitiated the electoral process, or demonstrated a clear and convincing picture of informality to the point of laxity. I therefore decline to overturn the election of respondent Mott.

THE APPEAL IS DISMISSED.

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