Appeal of CAROLYN EMOND from action of the Board of Education of the Central Square Central School District, Randy Hoyt, Maureen Ladd, as chief election officer, and Joseph Menard, as superintendent, regarding a school district election.

Decision No. 16,754

(May 8, 2015)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Heather M. Cole, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner challenges the results of an election to fill a vacancy on the Board of Education of the Central Square Central School District (“board”).  The appeal must be dismissed.

On May 20, 2014, respondent board held its annual election at five polling sites to fill three board vacancies.  The vacancies were for specific seats, including one (“seat one”) held by incumbent Randy Hoyt (“Hoyt”) who was listed on the ballot.  Petitioner, who worked as a per diem substitute in the district, verified with the district clerk that she was eligible to be a candidate for election to the board.  Petitioner was advised that, if successful, she would no longer be eligible to continue as a per diem substitute teacher.  On May 1, 2014, petitioner commenced a write-in campaign for seat one.  Petitioner lost that seat by 95 votes to respondent Hoyt.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 26, 2014.   

Petitioner alleges that certain election irregularities occurred during the May 20, 2014 election.  Specifically, petitioner claims that Maureen Ladd, chief election officer (“election officer”), engaged in improper electioneering and also that voter privacy was not sufficiently safeguarded during the election. As relief, petitioner seeks to set aside the results of the election with respect to seat one and requests a “re-vote” for that seat only.  She also asks that I instruct the district to respect voter privacy in the conduct of its elections. 

Respondents assert that Superintendent Menard, (“Menard”) is not a necessary party to this appeal and also that the petition is not verified, as required by 8 NYCRR §275.5.  On the merits, respondents assert that the petition fails to state a claim upon which relief can be granted; that respondent election officer did not engage in electioneering; that there were no improprieties or irregularities that warrant a re-vote; and that all actions in connection with the May 20, 2014 election were taken in good faith.  Respondents also object to the scope of petitioner’s reply.

First, I will address the 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 petitioner’s 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.

I agree with respondents that Menard is not a necessary party to the appeal.  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).  The petition is devoid of any allegation against Menard and granting the relief requested would not adversely affect his rights.  Therefore, Menard is not a necessary party and the petition is dismissed as against him. 

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).  Respondent asserts that the petition is not verified.  However, the petition filed with my Office of Counsel includes an affidavit of verification.  Therefore, I decline to dismiss the appeal for lack of verification. 

Turning to the merits, petitioner asserts that respondent election officer engaged in electioneering by informing voting inspectors at Cleveland Elementary School, one of the five polling sites, that votes cast for petitioner would not be counted because she was an employee of the school district.  Petitioner alleges that voters who overheard this statement were discouraged from voting for her.  She also claims that the statement “spread like wildfire” on social media, therefore, discouraging other voters. 

Petitioner also claims that there was a lack of privacy surrounding the election in two respects.  First, petitioner alleges that there were no private or screened locations for individuals to complete a paper ballot.  Second, petitioner alleges that, because only voters intending to vote for a write-in candidate used paper ballots, the voter’s intention was apparent.  Petitioner asserts that the use of both paper ballots and lever voting machines “discriminated against voter privacy by identifying individuals who wished to cast a write in ballot.” 

Respondents contend that the election officer’s conduct does not constitute electioneering and that, even if it did, petitioner has not established any basis for a re-vote.  Respondents admit that utilizing a paper ballot only for write-in candidates was contrary to prior decisions of the Commissioner and that, as a better practice, privacy screening should have been provided for voters casting a paper ballot.  However, respondents maintain that petitioner has not demonstrated any effect on the outcome of the May 20, 2014 election and there is no basis for setting aside the results.

The parties do not dispute that, due to the age of the lever voting machines, it is no longer possible to purchase paper for the machines to accommodate write-in votes.  According to the record, when the district realized that there might be a large write-in vote, it printed paper ballots because it had insufficient voting machine paper (and additional voting machine paper was not available) to accommodate a large write-in vote.  Signs were posted at each polling site advising voters that, if they wanted to vote for a write-in candidate, they must use a paper ballot.  Petitioner alleges that any voters that entered a voting machine “without understanding what the paper ballots were for and found they could not write in a name were not allowed to vote for seat one when they opened the machine.”  Respondent admits that once an individual exited the voting machine and that individual’s vote was recorded by the machine, the individual was not permitted to vote again utilizing a paper ballot.

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).

In addition, 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).

In support of her appeal, petitioner submits affidavits from nine voters and two election inspectors.  Five of the nine voter affidavits are from individuals who voted at the Cleveland Elementary School polling site. Three other affidavits are from individuals who voted at one of the three other polling sites.  Three affidavits focus exclusively on petitioner’s privacy claim; five focus exclusively on the claim that voters heard that votes for petitioner would not count; and one addressed both claims. 

With respect to petitioner’s claim that voter privacy was compromised by the failure to provide screens or other more private locations for filling out paper ballots, respondents agree such would be a better practice.  Similarly, respondents concede that using paper ballots only for write-in candidates has been held improper in Matter of Yost, 21 Ed Dept Rep 140, Decision No. 16,626.  However, as in Yost, petitioner has not demonstrated that alleged irregularities effected the outcome of the election to fill seat one.  Only four of the voter affidavits submitted by petitioner relate to her privacy claims.  In each case the voter asserts that, although not comfortable with the lack of privacy, each did cast a vote.  None stated that he or she did not vote for the candidate of his or her choice.  Therefore, I find that respondent board’s use of voting machines and paper ballots, as well as its failure to provide more privacy for casting paper ballots, did not affect the May 14, 2014 election.  Therefore, there is no basis for overturning the results of the election for seat one, as petitioner asks.  Nevertheless, respondent board is cautioned to ensure full compliance with Commissioner’s decisions in future elections and to review its election practices with respect to voter privacy.

Regarding petitioner’s allegations of improper electioneering by the election officer, respondents dispute that the election officer stated that votes for petitioner would not count due to her employment with the district; that any such statement does not, in any event, constitute electioneering; and that, on those claims, petitioner has also not demonstrated any basis for overturning the results of the elections for seat one.

Although respondent election officer denies stating that votes for petitioner would not count, petitioner submits affidavits from two election inspectors stating that the statement was made.  It is unclear whether any voter was present at the time.  However, I need not decide whether such a statement, if made, constitutes impermissible electioneering, as petitioner has not established that the outcome of the election was affected by the alleged irregularity.  Five of the six affidavits addressing this issue state that, despite concerns over the alleged statement that votes for petitioner would not count, the individual voted; four specifically state that they voted for petitioner; and one did not indicate for whom she voted.  Only one of the affiants stated that, due to concerns that voting for petitioner would not count, the individual left the polling site without voting for her.  Petitioner lost by 95 votes.  Consequently, she has not demonstrated that the alleged irregularity affected the election outcome with respect to seat one.  Similarly, petitioner has not shown that alleged irregularities were so pervasive that they vitiated the electoral process, or demonstrated a clear and convincing picture of informality to the point of laxity. Indeed, I note that, at the polling place where such statement was alleged to have been made, votes for petitioner (377) were significantly higher than that for her opponent, respondent Hoyt(40).  I, therefore, decline to overturn the election of respondent Hoyt to fill seat one.

THE APPEAL IS DIMISSED.

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