Appeal of CHRISTINE MCDONOUGH from action of the Board of Education of the North Shore Central School District, Superintendent Edward Melnick, candidate and board member Joanna Commander, Jane Doe and John Doe, regarding an election.

Decision No. 16,752

(April 30, 2015)

Ingerman Smith, L.L.P., attorneys for respondents board of education and superintendent[1], Neil M. Block, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the actions of the Board of Education of the North Shore Central School District (“respondent” or “board”), Superintendent Edward Melnick (“Melnick”), candidate and board member Joanna Commander (“Commander”) (collectively “respondents”), regarding the conduct of the district’s May 2014 school board election.  The appeal must be dismissed.

On May 20, 2014, the district held its annual school board election and budget vote.  Three candidates - Joanna Commander, Lara Gonzalez, and Robert Mazella - sought to fill two vacancies on the board of education.  The record indicates that the two candidates receiving the most votes and elected to positions on the board were Joanna Commander (1,336), and Lara Gonzalez (1,321).  The third candidate, Robert Mazzella, received 1,220 votes.

Petitioner challenges the result of the election and claims that “there were numerous irregularities, errors and improper conduct that were fundamentally unfair and so pervasive that they ultimately affected the outcome of the election.”  Specifically, petitioner alleges that on the eve of the election, respondent Commander, through her supporters, utilized district resources to place two separate automated campaign phone calls to district residents reminding them to vote and seeking their support.

Petitioner also contends that the board engaged in improper advocacy when a district resident, who is the chairman of the board’s Legislation Action Committee (a volunteer committee comprised of community members appointed by the board to advise on legislative issues), sent an email from his personal account endorsing two candidates, Lara Gonzalez and Joanna Commander.

Petitioner further alleges that Superintendent Melnick impliedly endorsed Commander by attending district-sponsored “budget coffee” presentations – at which Commander was also present - where information was presented to the public regarding the budget proposal.  Petitioner further contends that Melnick improperly endorsed Commander because he was listed as a member of the Facebook page, “Joanna Commander for North Shore Board of Education.”  Finally, petitioner raises general allegations of campaign sign tampering and circulation of rumors relating to the candidacy of Robert Mazella.

Petitioner seeks an order invalidating the May 20, 2014 election results and ordering a new election, or in the alternative, that the May 20, 2014 election be invalidated only with respect to respondent Commander.

Respondents maintain that petitioner has not met her burden of establishing that there were any irregularities that occurred or that actually impacted the outcome of the May 20, 2014 election.  Respondents assert that no school district resources were used to make the automated campaign calls to residents.  Respondents further contend that the email from the district resident, who is a volunteer board committee member, merely expressed his personal opinion and was neither an improper use of district resources nor improper electioneering.

Additionally, respondents contend that Superintendent Melnick did not engage in improper advocacy either by being listed as a member of respondent Commander’s Facebook page or by being present at the “budget coffee” presentations.  Respondents assert that the informational “budget coffee” presentations were sponsored by the district and were open to all residents, including all three board candidates.  Respondents specifically assert that one or more candidates were present at six of the eleven public presentations, and that at least one other candidate was also present at four of the five presentations attended by Commander.  Finally, respondents contend that the appeal is untimely and that petitioner has failed to join a necessary party.

I must first address several procedural matters.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioner challenges alleged irregularities in the conduct of the May 20, 2014 school board election and seeks invalidation of the election results.  Petitioner did not serve a verified petition on respondent board and respondent Melnick until June 24, 2014, and on respondent Commander until July 1, 2014, outside the required time period.  Therefore, because the appeal was not commenced within 30 days of the challenged election, it is untimely and must be dismissed.

Furthermore, 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).

As relief, petitioner seeks invalidation of the results of the May 20, 2014 election, which would adversely affect the rights of both successful board candidates, Joanna Commander and Lara Gonzalez.  As such, both are necessary parties to the appeal.  Petitioner failed to name Lara Gonzalez in the caption of the appeal and to serve her with a copy of the petition.  Therefore, the appeal must be dismissed for failure to join her as a necessary party.

However, even if the appeal were not dismissed on procedural grounds, it would be dismissed on 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, 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).

A board of education may use public resources to present objective, factual information to the voters concerning a vote or election (Education Law §1716; Phillips v. Maurer, et al., 67 NY2d 672; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  However, while a board of education may disseminate information “reasonably necessary” to educate and inform voters, its use of district resources to distribute materials designed to “exhort the electorate to cast their ballots in support of a particular position advocated by the board” violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Maurer, et al., 67 NY2d 672; Stern, et al. v. Kramarsky, et al., 84 Misc 2d 447; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Wallace, 46 id. 347, Decision No. 15,529).

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).

Although petitioner asserts that respondent board and Melnick engaged in improper electioneering with respect to the May 20, 2014 election, respondent board and Melnick deny the allegations.  In their answer, they assert that no district resources were used in any of the activities challenged by petitioner.  With their answer, respondent board and Melnick submit affidavits attesting to that assertion.  Moreover, Melnick avers that he did not post any communication on Commander’s Facebook page in an endorsement of her candidacy.  Finally, he avers that the “budget coffee” presentations were non-partisan informational meetings open to all district residents, including candidates.  Petitioner submitted no reply to refute respondents’ assertions or any other evidence to establish her claims.

Furthermore, 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).

Petitioner offers no evidence that any eligible voters actually received the allegedly improper communications or that, in the event such communications were received, any votes were actually influenced by the alleged actions.

On this record, petitioner has failed to meet her burden of proof and, thus, failed to establish any basis to overturn the results of the May 20, 2014 election.  In light of the above disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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