Appeal of the BOARD OF EDUCATION OF THE CROWN POINT CENTRAL SCHOOL DISTRICT regarding an annual district meeting.

Decision No. 16,291

(August 18, 2011)

Stafford, Piller, Murnane, Plimpton, Kelleher, Trombley PLLC, attorneys for petitioner, Meghan E. Zedick, Esq., of counsel

KING, JR., Commissioner.--The Board of Education of the Crown Point Central School District ("petitioner" or "board") seeks an order, pursuant to Education Law §2037, annulling and correcting the canvass of votes and certification of results on its 2011-2012 school district budget vote.  The appeal must be sustained in part.

On May 17, 2011, petitioner conducted its annual district meeting, which included votes on the proposed 2011-2012 school district budget ("Proposition 1") and an election to fill three seats on the board ("Proposition 2").  Petitioner appeals only with respect to Proposition 1.

On May 17, 2011, the election inspectors announced the election results for Proposition 1, as follows: 138 yes votes; 86 no votes; 4 abstained; and 1 vote was voided.  The ballot box was then locked by the district clerk.  The next day, the superintendent of schools reviewed the results and discovered a discrepancy in that the total number of votes determined to be cast on the budget (270) did not match the sum of the results certified by the election inspectors (138 "yes" votes + 86 "no" votes + 4 "did not vote" + 1 "void" = 229 total votes).  Petitioner submits, as Exhibit D to the petition, a handwritten "tabulation sheet" of the election inspectors' results to support its position that one of the election inspector's tally of 41 "yes" votes was allegedly not included in the final results, and contends that inclusion of these votes would resolve the discrepancy (229 + 41 = 270).

At a June 21, 2011 meeting, the election results were certified by the board and entered into the district's minutes book, and the board also unanimously adopted a resolution to commence this appeal.

Petitioner requests that I issue an order pursuant to Education Law §2037 annulling the canvassing and declared result of the vote on Proposition 1 and correct the canvass so that Proposition 1 be declared to have passed by a vote of 179 in favor and 86 against.  In the alternative, petitioner seeks an order pursuant to Education Law §2034(6)(a) directing that the ballot box be opened and the ballots recounted.

The Commissioner will not invalidate the results of a school district election on the basis of alleged irregularities unless it is established not only that irregularities occurred, but also a probability that any irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, aff’d 26 NY2d 709; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905), were so pervasive that they vitiated the electoral process (Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Georges, 45 id. 453, Decision No. 15,380), 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’dsubnomCapiobianco v. Ambach, et al., 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 Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748; Appeal of Georges, 45 id. 453, Decision No. 15,380).

In addition, Education Law §2304(6)(a) authorizes the Commissioner of Education to order a recount of the ballots in school district elections (Matter of Carville v. Allen, 24 Misc 2d 812, mod. andaff’d. 13 AD2d 866).  However, a recount will not be ordered absent a substantial attack on the integrity of the tallies and the returns of the inspectors of election, such as a showing of fraud or improper conduct (Appeal of Gresty, 31 Ed Dept Rep 90, Decision No. 12,580; Matter of Murtaugh, 19 id. 179, Decision No. 10,086; Matter of Morehouse, 15 id. 27, Decision No. 9,060).

As noted above, the election inspectors’ results were compiled on a “tabulation sheet” (Petition Exhibit D) for purposes of tallying the votes.  The tabulation sheet consists of a single sheet of paper with hand-written notations.  The sheet is divided by a vertical line into two columns. 

The “yes” column is on the left of the sheet and tabulates the numbers 48, 42, and 44 resulting in a sum of 134.  In, addition, immediately above the “yes” tabulation, to the left, is a crossed-out listing of the numbers 10, 10, 10 and 11, with 41 written to the right of these numbers and circled.  Also, immediately above the “yes” tabulation, to the right, is a crossed-out listing of the numbers 10, 20, 30 and 11.  There is nothing in the record that explains this listing.

The “no” column is on the right side of the sheet and tabulates 18 (there is a crossed-out 10 to its immediate left), 27, 14, 27 resulting in a sum of 86 (which is written over what appears to be the number 68).  In the bottom right hand corner, the number 86 and 41 are tabulated resulting in a circled sum of 117.  There is nothing in the record that explains this last tabulation.

Finally, the top left corner of the tabulation sheet has two rows labeled “not vote” and “void”, which rows are divided into two columns with the number 4 appearing in the right column to the right of “not vote” and the number 1 appearing in the right column to the right of “void”.

Although petitioner maintains that 41 votes must be added to the “yes” votes, I note a discrepancy between the number of “yes” votes tabulated on the tabulation sheet (48 + 42 + 44 = 134), and the number of “yes” votes announced on May 17, 2011 (138) as shown in Exhibit B to the petition, which is a document submitted by the district clerk that provides the May 17, 2011 vote results.  Furthermore, adding 41 to 134 “yes” votes fails to account for the 270 total number of votes cast as shown in Exhibit B, since 134 + 41 + 86 (“no” votes) +  4 (“did not vote”) + 1 (“void”) = 266 total votes cast.  Since there is nothing in the record that explains the discrepancy between the 134 votes shown in the tabulation sheet and the 138 votes shown in Exhibit B, I decline petitioner’s request to correct the canvass by adding 41 votes to the 138 “yes” votes shown in Exhibit B.

I also decline to order that a new vote be held on Proposition 1.  The record fails to establish that the discrepancy in the vote count affected the results of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, aff’d 26 NY2d 709; Appeal of Gresty, 31 Ed Dept Rep 90, Decision No. 12,580; Matter of Murtaugh, 19 id. 179, Decision No. 10,086; Matter of Morehouse, 15 id. 27, Decision No. 9,060).  Neither the 41 vote difference between the 270 total votes cast and the 229 vote sum calculated from the vote results certified by the board, nor the 45 vote difference between the 270 total votes cast and the 225 vote sum (if, per Exhibit D, 134 “yes” votes are substituted for the 138 certified “yes” votes), is sufficient, when added to the certified 86 “no” votes, to change the outcome of the vote on Proposition 1 (86 + 41 = 127 < 138 “yes” votes; and 86 + 45 = 131 < 134 “yes” votes). 

However, in view of the discrepancies discussed above, and particularly the discrepancy between the “yes” tallies in Exhibits B and D and the failure of the certified results to account for either 41 or 45 votes, I find that the record establishes a substantial attack on the integrity of the tallies and the returns of the inspectors of election, thereby requiring a recounting of the ballots under Education Law §2034(6)(a) (Appeal of Gresty, 31 Ed Dept Rep 90, Decision No. 12,580; Matter of Murtaugh, 19 id. 179, Decision No. 10,086; Matter of Morehouse, 15 id. 27, Decision No. 9,060).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED, that the action of petitioner board of education in canvassing and certifying the result of the May 17, 2011 vote on Proposition 1 be, and hereby is, annulled; and

IT IS FURTHER ORDERED that petitioner conduct a recount of the ballots submitted at its annual election on May 17, 2011 concerning Proposition 1 in accordance with this decision, within twenty days of the date of this decision.

END OF FILE.