Appeal of WANDA BENTLEY and MICHAEL BOLL from action of the Board of Education of the Ripley Central School District and board members Robert Bentley and Theodore Rickenbrode regarding a school board election.

      Decision No. 16,356

      (May 10, 2012)

Hodgson Russ LLP, attorneys for respondents, David A. Farmelo, Esq., of counsel

KING, Jr., Commissioner.--Petitioners appeal from actions of the Board of Education of the Ripley Central School District (“board”) and board members Robert Bentley (“R. Bentley”) and Theodore Rickenbrode (“Rickenbrode”) regarding the district’s May 17, 2011 election.  The appeal must be dismissed.

The May 17, 2011 election was conducted to fill two seats on the board.  R. Bentley, an incumbent board member, and petitioner Boll sought R. Bentley’s seat.  Rickenbrode, also an incumbent board member, and petitioner Wanda Bentley (“W. Bentley”) sought Rickenbrode’s seat.  Boll lost to R. Bentley by five votes and W. Bentley lost to Rickenbrode by 25 votes.  This appeal ensued.  Petitioners’ request for interim relief was denied on June 22, 2011. 

Petitioners allege several election irregularities and instances of improper partisan activities, including that respondents R. Bentley and Rickenbrode engaged in electioneering, that a woman was permitted to vote after the closing of the polls, that the district’s newsletter did not identify petitioners as candidates for the two board seats, and that a campaign flyer was misleading.  Petitioners also maintain that it was improper for R. Bentley to serve as election chairperson and to announce the election results, and that both R. Bentley and Rickenbrode neglected to complete the required fiscal accountability training for school board members as mandated by Education Law §2102-a.  Finally, petitioners allege violations of the Freedom of Information Law (“FOIL”).  Petitioners request that I order a new board election. 

Respondents contend that petitioners have failed to demonstrate a clear legal right to the relief requested and establish the facts upon which they seek relief.  Respondents maintain that the FOIL claim must be dismissed for lack of jurisdiction. 

Initially, I must address several procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Petitioners submit a newspaper article to support their position.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Wachala, 49 Ed Dept Rep 31, Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision No. 15,826; Application of Coleman, 45 id. 282, Decision No. 15,324).  Therefore, I have not considered such article for the veracity of its content.

Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Education Law §2102-a requires that a board member elected or appointed for a term beginning on or after July 1, 2005, must “within the first year of his or her term, complete a minimum of six hours of training on the financial oversight, accountability and fiduciary responsibilities of a school board member.”  Since the record indicates that both individual respondents have now completed the training required by Education Law §2102-a, I find petitioners’ claim with respect thereto to be moot.

Turning to the merits, to invalidate the results of a school district election, petitioner must establish 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, affd 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 (Appeal of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, affdsubnomCapobianco 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).

It is well settled that mere speculation as to the effect of alleged irregularities provides an insufficient basis on which to annul election results (Appeal of Crawford, et al., 47 Ed Dept Rep 413, Decision No. 15,739; Appeal of Kudlack, 45 id. 272, Decision No. 15,319).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioners maintain that the results of the election must be set aside because R. Bentley and Rickenbrode improperly engaged in electioneering by standing within 100 feet of the polling place and speaking with voters.  Education Law §2031-a(2) provides, in pertinent part, that “no person shall do any electioneering within a polling place, or within one hundred feet therefrom ....”  In an affidavit, Rickenbrode denies being within 100 feet of the polling place during voting.  While R. Bentley acknowledges in his affidavit that he was in the vicinity of the polling place from about 7:50 p.m. to 8:30 p.m. and spoke with a number of individuals when they were leaving the polling area, he denies discussing the election or the budget vote.  Both Rickenbrode and R. Bentley deny that they engaged in electioneering. 

Petitioners have not established that the individual respondents engaged in electioneering activity in violation of Education Law §2031-a.  An activity does not constitute electioneering absent proof that the activity was used to influence voters to vote a particular way (Appeal of Collins, 39 Ed Dept Rep 226, Decision No. 14,223; Appeal of Gang, 32 id. 337, Decision No. 12,847).  Simply speaking to voters within 100 feet of the polling place, without evidence that the individual respondents were trying to influence voters, does not constitute electioneering (Appeal of Collins, 39 Ed Dept Rep 226, Decision No. 14,223).

In view of the affidavits submitted by the individual respondents and the lack of evidence that their conversations with voters constituted electioneering or that the alleged electioneering affected the outcome of the election I find that petitioners have failed to meet their burden of proof on this claim.  Even if I were to find a violation of the statute, I note that proof of improper electioneering alone is not a sufficient basis for invalidating the results of an election – there must be a showing that it affected the outcome of the election (Appeal of Goldman, 35 Ed Dept Rep 126, Decision No. 13,487; Appeal of Cummings, 31 id. 147, Decision No. 12,600).

Petitioners also allege that the election should be overturned because a woman was permitted to vote following the closing of the polls at 8:00 p.m.  In support of their contention, petitioners submit a notarized statement from petitioner W. Bentley.  However, the district clerk avers that the clock used to time elections is three minutes behind the main clock system for the district and that no one voted after the polls were closed at 8:00 p.m. according to that clock.  Moreover, the superintendent avers that he reviewed the recording of the security camera located outside the voting room and that the last person to vote, at 7:57:22 p.m., was not escorted to the polls.  Moreover, even if this person was permitted to vote after the closing of the polls, petitioners present no evidence as to how she voted or even whether she voted for any board candidates.  Therefore, I find petitioners have failed to carry their burden with respect to this claim.

Petitioners also allege that the district’s newsletter improperly identified the individual respondents as candidates for the two open board seats without also naming petitioners as candidates.  This contention is without merit.  The record reflects that the names of the individual respondents appeared in the newsletter simply to identify the seats that were to be voted upon, by length of their term and current incumbent.  This is consistent with Education Law §§2018(a) and 2032(2)(b), which relate to the nomination of candidates and the form of ballots, and is not improper. 

Petitioners also make a number of claims with respect to a campaign flyer circulated by the individual respondents.  They allege that the flyer contained such statements as “IF APPROVED BY A COMMUNITY VOTE...” and “the board expects that tuitioning high school students to CLCS will offer some tax relief and open many opportunities for our high school students,” which misled voters into thinking that the board had, in the past, addressed the issue of tuitioning when it had not.  They also allege that the individual respondents improperly “spoke on behalf of the board” by circulating the flyer and that because R. Bentley had been board president for several years, his statements were given more weight by the voters.  Finally, they allege that the flyer confused voters as to what propositions would be on the ballot. 

While it is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election, individual board members are entitled to express their views about issues concerning the district and engage in partisan activity, provided school district funds are not used (Application of Vogel, 46 Ed Dept Rep 481, Decision No. 15,570; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  In this case, the record indicates that the flyer was not a statement of the board but was prepared, and paid for, solely by the individual respondents and that it addressed their individual views on issues relevant to the election.[1]

Moreover, the record contains only two statements, one of which is unsworn, indicating that two voters were affected by the content of the disputed flyer.  The record indicates that the failure of the two voters to vote for petitioners did not affect the outcome of the election, as petitioners lost by five and 25 votes respectively.  Petitioners have failed to carry their burden with respect to this claim.

Petitioners also contend that the election results must be overturned because R. Bentley, a board member and candidate for election, acted as chairman and declared the election results.  Education Law §2025(2) authorizes a board of education to appoint a qualified voter of the district as chairperson and contains no restriction barring a board member from that position (Appeal of Eagelfeld, 33 Ed Dept Rep 256, Decision No. 13,042; cf. Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920 [Education Law §2025 contains no restriction barring a board member from serving as an election inspector]).  However, having a board member who is also running for election serve as chairperson of the election in which he or she is a candidate gives rise to an appearance of impropriety and should be avoided.  Such an irregularity does not, in and of itself, warrant annulment of the outcome of the election (seeAppeal from the Election of the Trustee in District No. 11, of the Town of DeWitt, County of Onondaga, 50 St Dept Rep 58, Case No. 3043[1943][fact that board candidate acted as clerk and kept the poll list was not in and of itself “sufficient ground to set aside an election in the absence of some proof that the candidate committed some fraud in the performance of his duties”]).  In this case, petitioners offer no evidence that R. Bentley’s announcement of the election results improperly affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, 301 NYS2d 664, aff’d 26 NY2d 709, 308 NYS2d 873; Appeal of Cummings, 31 Ed Dept Rep 147, Decision No. 12,600). 

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

THE APPEAL IS DISMISSED.

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