Appeal of CORA LENA CAREY from action of the Board of Education of the Greenburgh Central School District regarding an election.

Decision No. 16,435

(December 3, 2012)

Keane & Beane, P.C., attorneys for respondent, Stephanie L. Burns, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals actions of the Board of Education of the Greenburgh Central School District (“board” or “respondent”) regarding the conduct of the district’s May 15, 2012 school board election.  The appeal must be dismissed.

On May 15, 2012, the district held its annual school board election.  Petitioner was one of ten candidates for three trustee positions on the board.  Candidates Terry Williams, Eric Bitterman and Sonja Brown earned the highest number of votes (607, 464 and 457, respectively) and were elected to fill the three vacancies.  The total votes cast for petitioner (456) was one less than the total votes cast for candidate Sonja Brown (457), who had obtained the third highest number of votes.  Subsequently, it was determined that an unregistered voter was improperly allowed to vote in the election.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 15, 2012.

Petitioner alleges that, had the improper vote been disqualified, “a deadlock, tie vote may have resulted.”  Petitioner maintains that the improper vote “may have had a critical, determinative impact on the outcome of the election” and asserts that she was denied “the benefit of procedures established to ensure the fairness of the voting process.”  Petitioner asks that the May 15, 2012 election be set aside.  She also seeks an order directing a new election between her and Sonja Brown.

Respondent maintains that more than three thousand votes were cast in the May 15, 2012 election, and there is no way to know for which candidate, if any, the improper vote was cast.

The appeal must be dismissed for failure to join necessary parties. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Section 275.8(d) of the Commissioner’s regulations provides in pertinent part: “If an appeal involves the validity of a school district meeting or election ... a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent” (emphasis added)(seeAppeal of Schultz, 48 Ed Dept Rep 70, Decision No. 15,796; Appeal of Duffy, 47 id. 86, Decision No. 15,634).

Petitioner asks that I “set aside” the May 15, 2012 election.  Annulment of the election results would affect Williams, Bitterman and Brown as the winning candidates.  Consequently, they are necessary parties to the appeal (Appeal of Kelty, 51 Ed Dept Rep, Decision No. 16,325; Appeal of Greene and Moss, 50 id., Decision No. 16,210; Appeal of Watson, 50 id., Decision No. 16,181).  However, none of these individuals are named as respondents in the caption of the petition.  Further, the record indicates that only Brown was served with a copy of the petition and notice of petition.  Because petitioner did not properly join the successful candidates, the appeal must be dismissed.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  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).

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 possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Antaki and Mosman, 47 Ed Dept Rep 228, Decision No. 15,678; judgment granted dismissing petition, Antaki and Mosman v. Mills and Bd. of Educ., Pleasantville UFSD, Sup. Ct., Albany Co., [Platkin, J.], May 30, 2008, n.o.r.; Appeal of Marchesani, 44 id. 460, Decision No. 15,232).  Although the parties agree that an individual was improperly permitted to vote, there is no way to discern for which of the ten candidates such vote was cast.  Clearly the outcome as to Williams (607) and Bitterman (464) was not affected by the contested vote.  Petitioner submits no evidence, such as an affidavit from the voter, on which to conclude that his or her vote affected the outcome as between petitioner and Sonja Brown.  Consequently, petitioner has not met her burden and provides no basis on which to set aside the May 15, 2012 election (seee.g., Appeal of Friers, 34 Ed Dept Rep 200, Decision No. 13,281).

THE APPEAL IS DISMISSED.

END OF FILE.