* Subsequent History: Cross v King; US District Court, Eastern District of New York; Order of dismissal; November 30, 2015. *

Appeal of MARIBEL TOURÉ, ANGELA DAVIS, TAMMI MITCHELL, BLAS FLORES DE YANES, DASHLY DANIELS, WILLIAM SALMON and DENNIS JONES from action of the Board of Education of the Hempstead Union Free School District, candidate and board member Betty Cross, and district clerk Patricia Wright regarding an election.

Decision No. 16,660

(August 28, 2014)

The Law Offices of Frederick K. Brewington, attorneys for petitioners, Frederick K. Brewington, Esq., of counsel

The Scher Law Firm, LLP, attorneys for respondents, Austin Graff, Esq., of counsel

KING JR., Commissioner.--Petitioners appeal the actions of the Board of Education of the Hempstead Union Free School District (“respondent” or “board”), candidate and board member Betty Cross (“Cross”), and district clerk Patricia Wright (“Wright”) regarding the conduct of the district’s May 2014 school board election.  The appeal must be sustained in part.

On May 20, 2014, the district held its annual school board election and budget vote.  Voters were asked to elect one board member to fill a full three-year term, which would expire on June 30, 2017, and to elect a second board member to fill a vacancy for the remainder of the vacant term, ending on June 30, 2015.  The following seven candidates ran in the election:  Ricky Cooke (“Cooke”); petitioner Touré; Tina Hodge-Bowles; respondent Cross, who was the incumbent board president; Randy Stith; David B. Gates (“Gates”); and Leonard Myers.

The record indicates that, after the polls closed and absentee ballots had been counted on May 20, 2014, Cooke and petitioner Touré had the most votes – 802 and 712 votes, respectively – and that respondent Cross received 691 votes, the third highest amount of votes.  At that time, six absentee ballot votes were counted in Touré’s favor and 144 were counted in Cross’s favor.  However, a number of absentee ballots were not counted on May 20 because it could not be confirmed that those voters were registered to vote in the district.  While respondent Wright announced that the budget had passed, the board voted on respondent Cross’s motion to suspend “acceptance of the candidates” until the remaining absentee ballots could be verified by the Nassau County Board of Elections the next day.

On May 21, 2014, respondent board called a meeting at which 66 remaining absentee ballots were inspected.  This process resulted in an additional 28 votes for respondent Cross, bringing her total number of votes to 719, and one additional vote for petitioner Touré, bringing her total number of votes to 713.  Both Cooke and respondent Cross were sworn into office on May 21, 2014.  This appeal ensued.  On July 18, 2014, I granted interim relief precluding respondent board from: (1) enforcing its May 21, 2014 action declaring respondent Cross the winner of the May 20, 2014 school board election as against petitioner Touré and (2) seating respondent Cross as a member of the board pending a determination on the merits of this appeal.

In addition, by order to show cause dated May 20, 2014, Cooke, petitioner Touré and petitioner Jones (“plaintiffs”) sought temporary restraining orders (“TROs”) and injunctive relief regarding the election in Supreme Court, Nassau County (“court”).  Specifically, plaintiffs sought (1) a TRO requiring the preservation of all materials related to the May 20, 2014 election; (2) a TRO and injunction to prevent the district from “finalizing the election” or “counting absentee ballots”; and (3) an injunction enjoining the district from “considering any illegal or void absentee ballots.”

On May 22, 2014, the court found that, in light of the provisions of Education Law §2037, it lacked jurisdiction over plaintiffs’ requests for relief regarding finalizing the election results and counting or considering absentee ballots.  However, the court granted plaintiffs’ request for a TRO with respect to the preservation of records and ordered that the district and Wright:

... preserve all machines, paper ballots of any kind, envelopes, notes, records, signature books/sheets, lists, logs, sample ballots, correspondence relating to the election, email or other electronic correspondence issued by the District or received by the District as same related to the election and the conduct, preparation for an[d] implementation of any aspect of the voting process, issuance of ballots, videotapes of any polling places, or any action connected to the election for [the] Hempstead Budget and School Board on May 20, 2014....

The record indicates that on May 22, 2014, subsequent to the court’s order, the Nassau County District Attorney’s Office took possession of all such materials related to the May 20, 2014 election.

Petitioners in the instant appeal allege that, in addition to their status as district residents, petitioner Touré was a candidate and voted in the May 20 election; petitioner Jones volunteered as a poll watcher during the May 20 election; petitioners Davis and Mitchell are members of New York Communities for Change and petitioner Mitchell also worked on Touré’s campaign and served as an alternate poll watcher during the May 20 election; petitioner Yanes voted in the May 20 election; and petitioners Salmon and Daniels were eligible to vote at the polls but did not do so because they voted via absentee ballots brought to their homes and filled out by workers for respondent Cross’s campaign on May 20.

Petitioners contest neither the passage of the 2014-2015 school year budget nor Cooke’s election to the full-
term board seat.[1]  Rather, petitioners seek relief only with respect to the election results as between petitioner Touré and respondent Cross.  Petitioners argue that numerous irregularities occurred in the conduct of the election that affected its outcome as between petitioner Touré and respondent Cross.  Specifically, they assert that respondents Cross and Wright engaged in “fraudulent and improper activity” during the course of the election, including “voter intimidation and voter fraud.”  Petitioners’ allegations include, inter alia, that respondent Cross’s conduct during the May 20 board meeting following the close of the polls violated Robert’s Rules of Order (“Robert’s Rules”) and board policy 2300; that respondents improperly called the May 21, 2014 meeting to count the absentee ballots and that such meeting was not a regular, special or adjourned meeting as required by board policy 2300; that respondents failed to provide adequate notice of the May 21, 2014 meeting; that respondents violated the Open Meetings Law; that respondents failed to adequately examine the envelopes for the absentee ballots and failed to conduct a thorough examination of the signatures and poll books to ensure that no absentee voter voted in person; that respondents failed to create an absentee voter list as required by Education Law §2018-a(6); that the absentee ballots contained a misspelling of petitioner Touré’s name and that the return envelope for such ballots did not include a return address to ensure that the ballot reached the district clerk; that members of respondent Cross’s campaign team visited residents who had not submitted applications for absentee ballots (and were not eligible to do so) and asked them to vote for respondent Cross using absentee ballots or to sign the ballot and allow them to vote for Cross on the resident’s behalf; that absentee ballots were “photocopied and reproduced outside of the Clerk’s Office” in violation of the Education Law; that voters, particularly those who were disabled and/or Spanish-speaking, were rushed, not allowed to complete their entire vote, not allowed to sign the poll book, and/or not provided with translation services; that high school students were “taken out of class and instructed to only vote for Betty Cross;” that respondent Cross and her campaign team engaged in improper electioneering within 100 feet of the polling place and “actively deterr[ed] votes of qualified residents and fabricat[ed] absentee ballots in Respondent Cross’s favor.”  Petitioners seek the invalidation of the election of respondent Cross and a determination that respondents Cross and/or Wright and/or members of Cross’s campaign team “engaged in voter fraud and voter intimidation” during the May 20, 2014 school board election.

Respondents argue that the appeal must be dismissed for failure to join necessary parties and for improper verification.  Respondents further maintain that the notice of petition did not include a request for interim relief and that such request should not have been considered.  Respondents also contend that petitioners have failed to carry their burden of proof, that their conduct and actions were proper, and that any technical violations of law that may have occurred with respect to the May 20 election do not warrant invalidation of the election results.  I also note that, together with their papers in opposition to petitioners’ request for interim relief, respondents submitted affidavits from respondent Cross; Theresa Drye, one of respondent Cross’s poll watchers; and Cornell Bozier, who worked on respondent Cross’s campaign.  However, respondents did not submit an affidavit from respondent Wright, the district clerk.  Respondents explain that in light of the investigation being conducted by the Nassau County District Attorney’s Office, “many of the District’s administrators, including Wright, have obtained outside counsel....  [T]hese administrators, including Wright[,] are being advised not to offer any sworn testimony in these proceedings because the criminal investigation is at its earliest stages and there is no way of knowing what the focus is or will be with the investigation.  As a result, Wright does not offer an Affidavit in opposition to the request for interim relief.”

Initially, I must address several procedural issues.  By letter dated July 25, 2014, an attorney with New York State United Teachers (“NYSUT”) sought permission to submit a memorandum of law amicus curiae on behalf of Cheryl Goodridge, a district resident and retired teacher.  Section 275.17 of the Commissioner’s regulations permits the filing of such applications by interested persons.  In considering whether to grant the application, the Commissioner has historically applied the standard adopted by the Court of Appeals, which requires satisfaction of at least one of the following criteria: (1) that the parties are not capable of a full and adequate presentation and that movant could remedy this deficiency; (2) that the movant could identify law or arguments that might otherwise escape the court’s consideration; or (3) that the proposed amicus curiae brief would otherwise be of assistance to the court (see 22 NYCRR §500.23[a][4]).

In this appeal, all parties are represented by counsel and there is no basis on which to conclude that the parties are not capable of a full and adequate presentation requiring remedy by Ms. Goodridge’s amicus submission.  I have reviewed Ms. Goodridge’s proposed amicus submission and find that it fails to identify law or arguments that might otherwise escape my consideration and that it would not otherwise be of assistance to me.  Accordingly, I will not consider the proposed amicus brief.

I note that the record contains several newspaper articles.  It is well-settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of McFeeley, 53 Ed Dept Rep, Decision No. 16,598; Appeal of Parris, 51 id., Decision No. 16,261). Therefore, I have not considered such articles for the veracity of their content.

Petitioners have submitted a reply affirmation, including three additional exhibits, and a memorandum of law.  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).  Similarly, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Consequently, to the extent petitioners’ reply and memorandum of law improperly include additional assertions and claims, I have not considered them.

In his affidavit in opposition to petitioners’ request for interim relief, respondents’ attorney objects to petitioners’ affidavits of verification.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  In this case, each petitioner submitted an affidavit of verification which states, in pertinent part:

... I have read the foregoing PETITION and know the contents thereof; the same is true to my own knowledge, except to the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true.

The ground of my belief as to all matters not stated upon my own knowledge are as follows:  personal experience and conversations with my attorneys.

Respondents’ attorney maintains that none of the allegations in the petition are asserted “upon information and belief” and that, because petitioners fail to identify which paragraphs in the petition are based on their own personal knowledge, the verifications are therefore invalid and the petition is “inherently untrustworthy.”  However, other than these conclusory statements in their attorney’s affirmation and accompanying memorandum of law, respondents do not submit any proof to establish that the verifications signed by any of the petitioners are false (see Appeal of Crowley, et al., 39 Ed Dept Rep 665, Decision No. 14,345).  Indeed, each petitioner has submitted an affidavit of verification and, as discussed more fully below, there is no indication in the record that, collectively, petitioners do not have knowledge of the facts underlying the appeal.  Accordingly, I find that the petition is properly verified.

In their reply, petitioners object to the fact that respondents’ answer was verified only by Lamont Johnson, the former board treasurer and current board president.  Petitioners argue that Mr. Johnson was not a candidate in the May 20 election and does not have actual and direct knowledge of the facts asserted in the answer.  To support their claim, petitioners submit minutes from the May 20 and 21 board meetings indicating that Mr. Johnson was not present at either meeting. 

Section 275.5(a) of the Commissioner’s regulations states, in pertinent part, as follows:

An answer shall be verified by the oath of the respondent submitting such answer.  If the appeal is brought from the action of the trustee or board of trustees or board of education of a school district, verification of the answer shall be made by any person who is familiar with the facts underlying the appeal.  If two or more respondents are united in interest, verification of the answer shall be made by at least one of them who is familiar with the facts.

As petitioners point out, the board minutes from both the May 20 and 21 meetings indicate that Mr. Johnson was absent from both meetings.  Several of petitioners’ claims relate directly to conduct alleged to have occurred during such meetings, and respondents expressly deny several of those allegations.  While the board of education is a named respondent in this matter and the record indicates that Mr. Johnson was the board treasurer at the time of the events being challenged and is now the board president, he was not present at two of the board meetings that are at issue in this appeal.

I acknowledge that each individual party in a particular case may not have knowledge of each and every element asserted in the pleadings.  In such cases, therefore, it may be necessary and appropriate to submit more than one verification in order to ensure that the pleading is properly verified based on the collective knowledge of the parties, as petitioners have done in this case.  While respondents have submitted a sur-reply in which they object to various aspects of petitioners’ reply, they notably fail to respond to those portions of the reply alleging improper verification of the answer, nor do they explain why they have not, for example, provided verifications from respondent Cross or any of the other board members who were present at the May 20 and 21 meetings.  Consequently, in the absence of a proper verification as required by 8 NYCRR §275.5 and any explanation or evidence to the contrary from respondents on this issue, I will not consider the answer (cf. Appeal of Crowley, et al., 39 Ed Dept Rep, Decision No. 14,345 and  Appeal of Brousseau, 39 id. 132, Decision No. 14,193).  As a result, the factual allegations set forth in the petition are deemed to be true statements to the extent they are not contradicted by credible evidence in respondents’ attorney’s affirmation, affidavits and exhibits in opposition to petitioners’ request for interim relief (“opposition papers”), which are properly part of the record before me and, to the extent such documents are responsive to the allegations contained in the petition, I have considered them (see Appeal of Brarens, et al., 51 Ed Dept Rep, Decision No. 16,317).

In their opposition papers, respondents’ attorney also claims that petitioners’ request for interim relief should not have been considered because the notice of petition did not include such request.  However, pursuant to Education Law §310 and 8 NYCRR §276.1(a), I have the discretion to grant a stay, with or without application therefor, if in my judgment such stay is necessary to protect the interests of the parties, or any of them, pending a decision on the merits of the appeal.  I note that Appeal of Wiatr (40 Ed Dept Rep 648, Decision No. 14,575), which is cited by respondents’ attorney in support of this position, does not limit my discretion under 8 NYCRR §276.1(a) and to the extent that Appeal of Wiatr or any other previous decisions by the Commissioner in appeals filed pursuant to Education Law §310 are inconsistent with the regulation, such decisions are expressly overruled.

Respondents also contend that 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) (see Appeal of Schultz, 48 Ed Dept Rep 70, Decision No. 15,796; Appeal of Duffy, 47 id. 86, Decision No. 15,634).

In this case, respondents argue that Cooke and all other candidates who ran in the May 20, 2014 election are necessary parties and that petitioners’ failure to join them requires dismissal of the appeal.  However, as described above, petitioners challenge only the election results as between respondent Cross and petitioner Touré – petitioners do not request that the election results be overturned nor do they dispute Cooke’s right to hold office (cf. Appeal of Watson, 50 Ed Dept Rep, Decision No. 16,181; see Appeal of Levine, 24 id. 172, Decision No. 11,356, affd sub nom Capobianco v. Ambach, et al., 112 AD2d 640).  In addition, because Cooke was elected by a sufficient plurality, there is no basis to conclude that the violations of law alleged in this appeal affected the outcome of his election.  Indeed, even if all absentee ballots were determined to be invalid, that would only reduce Cooke’s margin of victory by six votes.  Accordingly, as a decision on the merits of this appeal would affect only respondent Cross, Cooke is not a necessary party and petitioners’ failure to join him does not require dismissal of the appeal.  However, I note that, to the extent petitioners attempt to allege any wrongdoing or improper conduct on the part of candidate David B. Gates, any such claims must be dismissed as Gates was neither named as a respondent nor served with a copy of the petition and notice of petition in this appeal.

Turning to the merits, I note at the outset that petitioners raise numerous claims of impropriety regarding the May 20, 2014 election including electioneering, fraud and voter intimidation.  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, affd sub nom Capobianco 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).  Similarly, 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 allege that representatives of Cross’s campaign transported high school students to the polling places in private vehicles and “instructed” them to vote for respondent Cross.  In their opposition papers, respondents claim that petitioners have failed to establish any improprieties and cite to affidavits submitted by petitioners in which other individuals admit to providing voters with rides to the polls.  Other than their conclusory allegations that this constituted an “exploitation” of high school students that “was not only unsavory, but served as a clear affront to the democratic process...,” petitioners have not proven that such conduct, however unsavory, was in violation of law or that it affected the outcome of the election or vitiated the electoral process and have therefore not carried their burden of proof with respect to these claims.

Petitioners claim that respondent Cross, as both the board’s presiding officer and a candidate in the May 20 election, improperly moved to suspend certification of the election results at the May 20 meeting because a conflict of interest existed.  The record indicates that, through board policy 2352, the board has adopted Robert’s Rules as the “official guide to the conduct of official meetings.”  Petitioners claim that under Robert’s Rules, it is improper for a member with a “direct personal or pecuniary interest in a motion to propose the motion.”  While petitioners do not cite the conflict of interest provisions of the General Municipal Law, which are applicable to school district officers, I note that the General Municipal Law defines an interest as “a direct or indirect pecuniary or material benefit accruing to a municipal officer or employee as the result of a contract with the municipality which such officer or employee serves” (General Municipal Law §800[3]).  Under the governing State law, a prohibited interest would thus arise only if the subject resolution involved a contract with the district through which respondent Cross was to derive a direct or indirect pecuniary or material benefit (see Opns St Comp No. 83-40).  Petitioners, however, have not alleged or established that respondent Cross received any pecuniary or material benefit from her actions.  Under these circumstances, petitioners have failed to sustain their burden of demonstrating a clear legal right to the relief requested on this claim.

Petitioners also contend that respondent Cross improperly adjourned the May 20 meeting without providing a specified time or place in violation of board policy 2300, which requires that, “when the board is unable to complete the work it has scheduled at a regular or special meeting, it may, by majority vote, adjourn until a specified time set for an ‘adjourned meeting.’”  The Commissioner of Education has the authority to enforce a board policy (Appeal of Pulvermacher, 36 Ed Dept Rep 333, Decision No. 13,740; Appeal of Fusco, 39 id. 836, Decision No. 14,396). However, the Commissioner will exercise this authority only when petitioner establishes that a policy has clearly been violated (Appeal of Pulvermacher, 36 Ed Dept Rep 333, Decision No. 13,740; Appeal of Marek, 35 id. 314, Decision No. 13,554).  On the record before me, petitioners have established that respondent Cross adjourned the May 20 meeting without setting a specified time for an adjourned meeting in violation of board policy 2300.

I also note that, with respect to special meetings, board policy 2300 states, in pertinent part, as follows: 

In an EMERGENCY, if all members are present, the 24-hour notice [for special meetings] may be waived by unanimous Board action.  In such instance, each member will be asked to sign a Waiver of Notice.  A statement regarding the time of notice and signature of such forms shall be entered in the minutes.  The minutes of such meeting shall indicate that the notice was waived (emphasis in original).

While the minutes from the May 21 meeting indicate that such meeting was an “emergency meeting,” they also indicate that not all board members were present (Treasurer Lamont Johnson was recorded as absent).  Further, the minutes contain no indication of or reference to the waiver of notice as required by board policy 2300.  Accordingly, I find that violations of board policy 2300 occurred with respect to both the May 20 and May 21 meetings, and I admonish the board to abide by all applicable laws, regulations and board policies in the conduct of all future board meetings.

To the extent petitioners allege that respondents violated the Open Meetings Law with respect to the May 20 and May 21 meetings, I note that Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law 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 McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

Petitioners also allege that voters who expressed their intent to vote for petitioner Touré, particularly Spanish-speaking, first-time and disabled voters, were intimidated at the polls.  Petitioners claim that such voters were rushed, not allowed to complete their vote, not allowed to sign the poll book, and not provided with translation/interpreter services.  To support their claims, petitioners submit an affidavit from Maria Flores, a district resident and voter who is a native Spanish-speaker with limited English proficiency.  Ms. Flores avers that she was not offered an interpreter/translator and could not locate petitioner Touré’s name in the voting booth.  Ms. Flores avers that she was rushed out of the voting booth and was not able to finish casting her vote for Touré.  Similarly, petitioner Yanes avers that she was not offered a Spanish interpreter and that she was unable to locate Touré’s name in the voting booth.  As a result, she was not sure for whom she cast her vote.  Ms. Yanes also avers that she saw poll workers telling Ms. Flores to “get out” of the voting booth.  Sergio Argueta, who was involved in the United for Change Campaign in support of Cook and petitioner Touré, submits an affidavit corroborating Ms. Flores and Ms. Yanes’s accounts.

Petitioner Davis avers that she is disabled and needed additional time to sign her name in the poll book but that she was interrupted by a poll worker and was not allowed to complete her signature.  Ms. Davis also avers that after she communicated her vote to her assistant, a poll worker “loudly announced” her vote, which she felt was “a form of intimidation.”  Petitioner Mitchell submits an affidavit supporting Ms. Davis’ claims.  On this record, while petitioners have established that these incidents occurred at the polling place, they have not carried their burden of demonstrating that they affected the outcome of the election.

Petitioners also claim that respondent Cross and members of her campaign team improperly engaged in electioneering within 100 feet of the polling place.  Education Law §2031-a(2) provides, in pertinent part, that “no person shall do any electioneering within the polling place, or within one hundred feet therefrom ....”  Petitioners have submitted affidavits from individuals who aver that they witnessed respondent Cross attempt to persuade voters to vote for her within 100 feet of the polling place.  For example, petitioner Jones avers that he observed respondent Cross escorting voters from their cars to the door of the polling place “while imploring them to vote for ‘Betty Cross’” in “blatant violation of the rule banning any electioneering within 100 feet of the polling location entrance.” Delsy Sanchez, a district resident who volunteered for the Cooke/Touré campaign, avers that on election day, “[o]n more than one occasion, I ... witnessed Betty Cross walk voters past the 100 foot threshold for electioneering and attempt to convince them to vote for her.  Betty Cross also entered the [polling place] with voters.”  Mimi Pierre-Johnson avers that “on several occasions” she witnessed respondent Cross walk voters to the entrance of the polling site “while pleading for them to vote for her.”  Ms. Pierre-Johnson also avers:

As Betty Cross spoke to the voters, I heard her promise to provide a tax rebate check if they voted for her in the election.  She stated: “I work with the Governor and you will get a rebate check; just go in there and vote Yes for the budget and row D and you will get that check.”  She also stated: “Vote for the budget and row D, you know I’ll take care of you” and “now you know I always take care of you.”

Together with their opposition papers, respondents submit an affidavit from respondent Cross, who generally denies the allegations against her and states that she did not “authorize, direct or have any knowledge of any improper activities” (emphasis in original).  Notably, however, Cross does not specifically address the electioneering allegations, except as follows:

An example of the lengths to which the Petitioners go, is that I made promises to voters that they would receive a check from the government if I was elected.

. . .

The reality is that I told voters that because of my efforts, the District’s proposed budget was under the State-mandated tax cap.  As a result of being under the tax cap and, based upon recently passed legislation in Albany, homeowners will receive real estate tax rebate checks from the State.  I did not promise anything.  I said what was true and accurate.  To suggest otherwise is dishonest and desperate political gamesmanship.

While Cross addresses the substance of the statements she is alleged to have made to voters on election day, she does not address the allegations that she did so within 100 feet of the polling place in contravention of Education Law §2031-a(2).  As a result, in view of the affidavits submitted by petitioners and the lack of evidence to the contrary submitted by respondents, I find that petitioners have met their burden of establishing a violation of the statute.

However, 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).  While the record indicates that respondent Cross made several specific statements intended to influence voters within 100 feet of the polling place, petitioners have not identified any individual(s) to whom such statements were made or any evidence indicating that such statements influenced voters in any way.  On the record before me, therefore, petitioners have not carried their burden of demonstrating that respondent Cross’s conduct in this regard affected the outcome of the election.

The gravamen of petitioners’ appeal is their claim that numerous improprieties in respondents’ handling of absentee ballot applications and absentee ballots impacted the outcome of the election as between petitioner Touré and respondent Cross.  While both parties cite to both Education Law §§2018-a and 2018-b as statutes governing respondents’ use of absentee ballots and the two statutes are largely identical, only one can apply.  Education Law §2018-a applies only to school districts that provide for personal registration of voters.  It appears from the record that respondent district has not provided for personal registration by the school district and instead relies upon voter registration with the Nassau County Board of Elections.  Accordingly, I find that Education Law §2018-b applies to respondents’ use of absentee ballots.

Specifically, petitioners allege that many absentee ballots were not received in the office of the district clerk prior to 5:00 p.m. on May 19, 2014 as required by Education Law §2018-a(2)(a).  Rather, according to petitioners, “improper” absentee ballots were hand-delivered directly to the polling site on May 20, 2014, the day of the election.  I note that, while Education Law §§2018-a(2)(a) and 2018-b(2)(a) apply to absentee ballot applications, which are required to be received by the district clerk the day before the election if the ballot is to be delivered personally to the voter, Education Law §2018-b(5) and (6), for example, govern absentee ballots and require that the envelope containing an absentee ballot “must reach the office of the clerk of the school district or designee of the trustees or school board not later than five P.M. on the day of the election in order that his vote may be canvassed” (Education Law §2018-b[6][c]).  Education Law §2018-b(9) further states that “[n]o absentee voter’s ballot shall be canvassed, unless it shall have been received in the office of the clerk of the school district not later than five P.M. on the day of the election.” 

While petitioners object to the fact that several individuals each carried multiple absentee ballots into the polling place on the day of the election, there is nothing in the law that prohibits such conduct.  Petitioners’ reliance on Appeal of Martin (31 Ed Dept Rep 519, Decision No. 12,720) and Appeal of Levine (24 Ed Dept Rep 172, Decision No. 11,356, affd sub nom Capobianco v. Ambach, et al., 112 AD2d 640) in this regard is misplaced.  Appeal of Levine is factually distinguishable from the instant appeal as, there, the Commissioner found that the board received several applications for absentee ballots on the day of the election and improperly issued and accepted absentee ballots, which affected the outcome of the election.  In Appeal of Martin, therefore, the following summary of the facts present in Levine was incomplete:  “In [Levine], the board of education accepted absentee ballots on the day of the election, thereby violating Education Law §2018-a(2)(a)” (emphasis supplied).  To the extent that Appeal of Martin, or any other previous decisions by the Commissioner in appeals filed pursuant to Education Law §310 are inconsistent with the statue, such decisions are expressly overruled.  On this record, I find that petitioners have failed to carry their burden of proof with respect to this claim.

Petitioners also assert that absentee ballots were improperly photocopied and distributed to individuals who were not eligible to vote via absentee ballot.  To support this claim, petitioners rely on an email sent on Friday, May 16, 2014 by respondent Wright stating that, as of that date, she had “printed” and “mailed” 231 ballots.  Petitioners claim that, during the election on May 20, “scores” of “improper” absentee ballots were delivered to the polling place – more than the 231 “ballots” referenced in Wright’s May 16 email.  Petitioners conclude that an additional 301 absentee “ballots” were improperly “picked up” at respondent Wright’s office between May 16 and May 19 and appear to argue that absentee ballots and/or applications were improperly photocopied and disseminated by respondents in order to increase the number of votes by absentee ballot accruing to respondent Cross. 

Petitioners also submit an affidavit from district resident Atlanta Cockrall, who avers that, on May 16, 2014, three individuals came to her door with “a stack of photocopies of what appeared to be absentee ballots” and presented her with a form that “was not the ‘Application for Absentee Ballot’ and requested that I fill it out to vote for ‘Betty Cross’ through an absentee ballot.”  Ms. Cockrall asserts that she was not eligible to vote by absentee ballot and planned to go to the polls on May 20.  Ms. Cockrall also explains that, on May 20, when she asked several neighbors if they needed a ride to the polls, they informed her that “they had already voted through ... absentee ballots” provided by one of Cross’s campaign workers.  Ms. Cockrall states that although her neighbors were “physically able to vote at the polls, made no application for an absentee ballot and were not qualified to receive absentee ballots, they signed the documents provided by [Cross’s campaign worker] because she informed them that they did not have to go to the polls and that she would ‘handle everything’ if they just signed the documents.”

In their opposition papers, respondents contend that petitioners “intermingle and confuse” absentee ballots with absentee ballot applications.  As noted above, while respondents submitted an affidavit from respondent Cross, as well as affidavits from one of her poll watchers and a campaign worker, they failed to submit an affidavit from respondent Wright, the district clerk.  One of Cross’s campaign workers, Cornell Bozier, avers that “[a]t no time did I photocopy or reproduce absentee ballots, nor did I direct anyone else to photocopy or reproduce absentee ballots, nor was I told that there was a need to photocopy absentee ballots” (emphasis in original).  Respondent Cross likewise avers that she “did none of the things alleged against me....  Nor did I ever authorize, direct or have any knowledge of any improper activities” (emphasis in original).

On the other hand, in addition to Ms. Cockrall’s affidavit, petitioners provide affidavits from several individuals who aver that they were not eligible to vote by absentee ballot because they were, in fact, able to appear personally at the polls on May 20.  Petitioners allege that such voters were induced to cast their vote by absentee ballot by representatives of respondent Cross’s election campaign, who delivered applications for absentee ballots and/or ballots to the voters at their residences.

For example, district resident Ernest Clemons avers that he is not eligible to vote by absentee ballot, but that on May 20, a man and woman came to his apartment and asked him to vote for Betty Cross through an absentee ballot.  When Mr. Clemons told them that he would vote when he got a chance to go to the polling site, they told him “that I can sign an absentee ballot in case I am unable to make it to the polls.  They stated that this would be easier since I was unsure when I was going to the polls.”  Mr. Clemons avers that they then told him “what two (2) boxes to check and instructed me to sign the absentee ballot.”

Petitioner Daniels avers that she was not qualified to vote by absentee ballot.  She states that when she informed the woman who came to her residence that she probably would not vote because she had difficulty finding childcare, she was told that she could “vote from home through an absentee ballot and not worry about going through the hassle of finding a babysitter.  [The woman] then presented me with an absentee ballot application and showed me what box to check and where to sign.”  Daniels states that the woman returned on May 20 and asked Daniels to sign and date an envelope and that, when she asked “Who am I voting for?”, the woman answered “Betty Cross.”

Shamika Mason avers that on May 19, three people came to her apartment and asked her to vote for respondent Cross via absentee ballot, even though she was not eligible to do so.  Ms. Mason explained that she was busy at the moment, and they told her that she “could still vote for Betty Cross if I just signed an absentee application and an absentee ballot.  I signed my name where they showed me and [they] told me that they could take care of the rest....  I noticed that they were carrying bags with several copies of ‘Betty Cross’ flyers, absentee applications and absentee ballots inside.”

In addition to their allegations of irregularities with respect to absentee ballots, petitioners allege that respondents failed to maintain a list of all persons to whom absentee ballots were issued and to post such list in a conspicuous place during the election, as required by Education Law §2018-a(6).

In their memorandum of law included with their opposition papers, respondents state “[w]hile it is true no list was created[,] no one requested to review such a list” and that the “admitted ... violation” is merely “technical.”  To support their position, respondents rely on Appeal of Bennett (48 Ed Dept Rep 311, Decision No. 15,870).[2]  In Bennett, petitioner argued that the board failed to make the absentee voter list available.  Petitioner submitted an affidavit from a district resident who went to the school district administration building to examine the list of absentee voters but the clerk’s office was locked and she was told that the clerk was unavailable and she would have to return.  In response, the district clerk countered that neither she nor anyone else from the district was aware of this individual presenting herself at the office, and the record indicated that the individual’s name did not appear on the district’s visitor sign-in sheet for that date. Respondent board also submitted the type-written list of absentee voters it maintained.  Given the contradictory evidence presented in Bennett, the Commissioner could not conclude that any violation occurred, but reminded the district of its statutory obligation to have a list of absentee voters available during regular business hours.  In the instant appeal, there is no such conflicting evidence and respondents have not submitted a list for purposes of this appeal, as was the case in Bennett.  Indeed, respondents admit that no such list was ever created as required by Education Law §§2018-a(6) and 2018-b(7). 

In addition to requiring that a list of all persons to whom absentee ballots were issued be available in the office of the district clerk,Education Law §2018-b(7) also provides in pertinent part as follows:

Any qualified voter may, upon examination of such list, file a written challenge of the qualifications as a voter of any person whose name appears on such list, stating the reasons for such challenge.  Such written challenge shall be transmitted by the clerk or the designee of the trustees or school board to the inspectors of election on election day.

Generally, an individual who has the right to challenge a ballot and does not do so at the time of the election will not be allowed to object to the outcome of the election on the ground that unqualified ballots were counted in the election results (Appeal of Karliner, 36 Ed Dept Rep 30, Decision No. 13,644; Appeal of Levine, 24 id. 172, Decision No. 11,356, affd sub nom Capobianco v. Ambach, et al., 112 AD2d 640; Matter of Thomas, 22 id. 238, Decision No. 10,946).  As indicated above, respondents state that no one asked to see the list and that no qualified voter or poll watcher challenged the counting of the absentee ballots.  In his affirmation, respondents’ attorney asserts that “[t]he poll watchers’ active participation in the absentee ballot voting should stand as a waiver or an estoppel against [petitioners’] current position.”  In their opposition papers, respondents cite Appeal of Karliner, 36 Ed Dept Rep 30, Decision No. 13,644) to support their position.

The record is clear that, during the election on May 20, petitioners’ attorney, Frederick K. Brewington, made several inquiries of respondents’ attorney regarding the volume of absentee ballots received at the polling place on May 20, 2014 as compared to the number of ballots respondent Wright reported issuing as of May 16, 2014.  This is supported in affidavits from Mimi Pierre-Johnson and petitioner Jones, who both aver that they observed Mr. Brewington making such inquiries regarding the list.

In addition, the Commissioner has previously held that, where a petitioner not only challenges the qualifications of voters, but also alleges fraud of the type alleged here that is supported by evidence, the petitioner is not required to utilize the statutory mechanism for challenging the qualifications of a person to whom an absentee ballot was issued before instituting an appeal (see Appeal of the Weller Library Commission, 42 Ed Dept Rep 338, Decision No. 14,875).  In this case, several district residents who voted by absentee ballot – Peggy Bellamy, Ernest Clemons, Dashly Daniels, Shamika Mason, David McCrae, Anita Wooten, and petitioner Salmon – aver that they were not eligible to do so and planned to vote at the polling place on May 20.  Further, Clemons, Daniels, Mason, McCrae, Wooten and Salmon all indicate that individuals came to their residence, identified themselves as campaign workers for Betty Cross and/or asked them to vote for Betty Cross, and told them which boxes to check and where to sign to vote via absentee ballot.  It also appears from the record that, as of the Friday before the election, the district clerk had mailed only 231 absentee ballots and that, by the date of the election, 301 additional absentee ballots were issued.  That is an extraordinarily high number of absentee ballot applications to be processed and absentee ballots to be issued with only one business day before the election.  Coupled with petitioners’ evidence of a pattern of improper solicitation of false applications for absentee ballots by individuals advocating votes for respondent Cross, the very large number of last-minute personally-delivered absentee ballots suggests a severe risk of fraud that vitiated the fundamental fairness of the election.

Here, petitioners do not solely challenge the qualifications of individual voters, but also allege fraud supported by evidence suggesting that several voters were induced to file false applications.  Under these circumstances, I find that petitioners were not required to utilize the statutory mechanism for challenging the qualifications of persons to whom absentee ballots were issued before instituting this appeal (see Appeal of the Weller Library Commission, 42 Ed Dept Rep 338, Decision No. 14,875).

In this case, petitioners have established sufficient irregularities in the handling of absentee ballot applications and/or absentee ballots to warrant setting aside the election results as between petitioner Touré and respondent Cross.  Contrary to respondents’ arguments, I do not in any way regard respondents’ failure to maintain a list of persons receiving absentee ballots as a mere irregularity.  As the facts of this case suggest, failure to maintain such a list is an open invitation to fraud and threatens the integrity of the electoral process.  Respondents’ failure to maintain such a list as a record of the applications reviewed and absentee ballots issued demonstrates a degree of laxity in the handling of absentee ballots that threatened the integrity of the election. Moreover, respondents’ failure in this instance to maintain and post a list of all persons to whom absentee ballots were issued prevented petitioners – and anyone else – from having a reasonable opportunity to challenge such absentee ballots at the time of the election.

The record indicates that, on May 21, the board certified the election results for four candidates with the highest number of votes as follows:

Cooke     Touré     Cross     Gates

Machine Totals:     796       706       547       635

Absentee Votes:     6         6         144       42

Subtotal:           802       712       691       677

Validated Absentee: 0         1         28        8

Grand Total:        802       713       719       685

According to the certified results, respondent Cross received 159 less machine votes than petitioner Touré but received a total of 172 absentee ballot votes - as compared to Cooke’s six and Touré’s seven – which gave her the second highest number of votes by a mere 6-vote margin.  On its face, such a disparity in the number of absentee ballots cast in favor of a single candidate is highly suspect.  Petitioners submit an analysis of the absentee ballot votes conducted by Dr. David N. Sessions of Hofstra University.  In his analysis, Dr. Sessions opines:

[T]he Absentee Ballot voting pattern is not linearly related to the Machine voting pattern....  The lack of correlation between Machine and Absentee voting counts suggests that the factors that drive Absentee Ballot voting patterns are fundamentally different from factors that drive Machine voting....

In light of the evidence presented by petitioners, the lack of evidence produced by respondents, and respondents’ admitted failure to maintain a list as required by Education Law §2018-b(7), it cannot be determined on this record how many absentee ballot applications were received, how many absentee ballots were issued, and whether such issuances were in all cases valid with respect to respondent Cross and petitioner Touré.  Nor can it be determined whether all of the absentee ballots counted for respondent Cross and petitioner Touré were validly cast.  Under the circumstances, I find that petitioners have established that irregularities occurred that vitiated the electoral process as between petitioner Touré and respondent Cross and I therefore find that a new vote is necessary to determine the will of the voters as to the board vacancy with a term expiring on June 30, 2015 (see Appeal of Levine, 24 id. 172, Decision No. 11,356, affd sub nom Capobianco v. Ambach, et al., 112 AD2d 640).

On the record as a whole, these irregularities show a clear and convincing picture of informality to the point of laxity with respect to the provisions of Education Law §2018-b.  While I have been understandably reluctant to overturn the results of a school district election where technical violations exist, this reluctance must of necessity yield to a showing of extensive disregard for statutory requirements, as has been established by petitioners in this case (see Appeal of Levine, 24 id. 172, Decision No. 11,356, affd sub nom Capobianco v. Ambach, et al., 112 AD2d 640; Appeal of Nicoletta, 7 Ed Dept Rep 115, Decision No. 7,853).

I have considered the parties’ remaining contentions and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the results of the May 20, 2014 school board election as between petitioner Maribel Touré and respondent Betty J. Cross are hereby annulled; and

IT IS FURTHER ORDERED that respondent Hempstead Union Free School District proceed forthwith to call a special district meeting for the purpose of conducting a vote to fill the board vacancy with a term expiring on June 30, 2015; and

IT IS FURTHER ORDERED that respondent Hempstead Union Free School District conduct such special election, and all future school board elections, in accordance with all applicable provisions of law and regulation; and

IT IS FURTHER ORDERED that respondent Hempstead Union Free School District cooperate fully with any individual(s) designated by the Commissioner to monitor and observe the conduct of such special election; and

IT IS FURTHER ORDERED that respondent Hempstead Union Free School District comply with all applicable provisions of law, regulation and board policy in the conduct of all future school board meetings.

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