Appeal of TERENNA WILLIAMS from action of the Board of Education of the Uniondale Union Free School District, Trustee James M. Sharpe, III, Trustee Emerson Mott, Sally Thompson, and District Clerk Selma Rubin regarding an election.

Decision No. 16,900

(April 19, 2016)

The Sher Law Firm, LLP, attorneys for petitioner, Austin Graff, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondents Board of Education of the Uniondale Union Free School District, James M. Sharpe, III, Emerson Mott, and Selma Rubin, Edward H. McCarthy, Esq., of counsel

ELIA, Commissioner.—-Petitioner, appeals from action of the Board of Education of the Uniondale Union Free School District (“board”), board trustee James M. Sharpe, III (“Sharpe”), board trustee Emerson Mott (“Mott”), board candidate Sally Thompson (“Thompson”),[1] and District Clerk Selma Rubin (“district clerk” or “Rubin”), regarding the district’s May 19, 2015 election.  The appeal must be dismissed.

On May 19, 2015, respondent board held its annual budget vote and election, in which petitioner challenged incumbent board trustee Sharpe and received 585 total votes while Sharpe received 599 total votes.  Thompson, a named respondent, challenged incumbent board trustee Mott.  Thompson received 542 votes while incumbent trustee Mott received 651 votes.

The district has two polling sites: its Uniondale High School (“high school”) and Lawrence Road Middle School (“middle school”).  Three voting machines were used at each polling site.  After the polls closed, the district’s election workers at the middle school polling site telephoned the voting results to the district clerk.  The district clerk and election workers at the high school polling site counted the voting results at that site and then opened and counted the absentee voter ballots.

According to the district clerk’s affidavit, on May 21, 2015, petitioner’s counsel notified the district clerk and counsel that petitioner, Thomson, and their representatives were denied access to inspect the back of the opened voting machines at the middle school polling site after the polls closed on May 19, 2015.  The district clerk subsequently contacted the Nassau County Board of Elections (“BOE”) to request that all six voting machines be secured and impounded.  At petitioner’s request, a recount and inspection of the voting machines, voter sign-in books, and absentee ballots was held on June 3, 2015.  The vote count from the six voting machines on June 3, 2015, as well as a recount of absentee ballots, was the same as that recorded on May 19, 2015.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 22, 2015.

Petitioner alleges several irregularities with regard to the May 19, 2015 election.  First, petitioner asserts a number of irregularities with regard to the voting machines: that, when polls closed at the middle school on May 19, 2015, Thompson was denied access to examine the back of the voting machines; that upon examination of the voting booths on June 3, 2015, the seals affixed to two of the three middle school voting booths and one of the three high school voting booths were broken; and that discrepancies exist between the number of votes recorded in the voting booths and the number of signatures in the voter sign-in books at both polling sites.  Second, petitioner asserts that the district’s resources were improperly used to promote Sharpe and Mott.  Third, petitioner contends that the district clerk failed to post a list of absentee ballot recipients until May 14, 2015, less than seven days before the election.  Finally, petitioner asserts that a district employee was observed entering a voting booth with a voter and also that voters were electioneering inside the voting room.  Petitioner asserts that these irregularities affected the outcome of the election and seeks to annul the results of the election.  She requests that a special election be held between petitioner and Sharpe and that the New York State Attorney General’s Office monitor the special election.

Respondents assert that the appeal must be dismissed for failure to state a claim upon which relief can be granted.  Respondents deny any misconduct.  The board denies that there were any irregularities in the conduct of the election or that any alleged irregularities affected the outcome of the election.  Finally, respondents object to petitioner’s memoranda of law as untimely and improper.

I must first address petitioner’s submissions.  Together with the petition on June 9, 2015, petitioner served a document entitled “Petitioner’s Memorandum of Law in Support of Her Verified Petition” (“memorandum of law”).  Pursuant to §276.4 of the Commissioner’s regulations, petitioner was required to serve her memorandum of law within 20 days after service of the answer, or 10 days after service of the reply, whichever is later.  Where the answer is served upon petitioner or petitioner's counsel by mail, the date of mailing and the four days subsequent thereto shall be excluded in the computation of the 20-day period in which petitioner's memorandum of law must be served and filed.  Respondents’ answer was served by mail on July 16, 2015.  Therefore, petitioner had until August 9, 2015 to serve her memorandum of law.  While petitioner’s memorandum of law should have been served after the answer, respondents have not demonstrated any prejudice by virtue of the earlier submission (Appeal of The Sea Cliff – North Shore Property Owners Committee, 54 Ed Dept Rep, Decision No. 16,730).  Therefore, I have considered petitioner’s memorandum of law.

Respondents also object to a document entitled “Memorandum of Law in Further Support of Petitioner’s Verified Petition” (“second memorandum of law”) which petitioner served together with an “Affirmation of Austin Graff in Further Support of Petitioner’s Verified Petition” (“affirmation”) on July 30, 2015.  Although not entirely clear, the affirmation appears to be a reply because it states that it is submitted in reply to the answer.  To the extent petitioner’s submission is intended as a reply, I note that 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).  However, the affirmation does not specifically respond to any affirmative defenses raised in the answer.  Rather, it annexes three new exhibits without explanation therefor, and refers to the “accompanying Reply Memorandum of Law” for explanation.

I also note that 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).  Therefore, while I have collectively reviewed petitioner’s affirmation and second memorandum of law, 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 or belated assertions or exhibits that are not part of the pleadings.

Turning to the merits, petitioner alleges several irregularities with regard to the May 19, 2015 election.  In her affidavit, petitioner claims that “serious misconduct infected the election process such that the voters ... did not have a fair election” and that “even a minor irregularity could have changed the results."  However, 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).

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).

Petitioner claims that, when the polls closed at the middle school on May 19, 2015, Thompson was denied an opportunity to examine the back of the voting machines at that site.  Petitioner submits affidavits from Thomson and an election clerk/poll worker indicating that both individuals were denied access.  Respondents dispute this claim and contend that the courtesy of observing and inspecting the back of the opened voting machines at the conclusion of the election was afforded to district residents on May 19, 2015.  According to an affidavit from the district’s Administrative Assistant for Business (“administrative assistant”), who supervised the middle school polling site on May 19, 2015, Thompson and petitioner’s poll watchers were instructed to wait in front of the voting machines until the votes were officially counted and recorded, at which point they would be permitted to inspect the back of the voting machines.  However, according to the administrative assistant, no one specifically requested to view the voting machines after the votes were officially recorded.  In her reply, petitioner does not dispute the claim that an opportunity to examine the voting machines was provided after votes were counted and recorded, but rather, asserts that the district should have allowed the residents to view the back of the voting machines while they were opened and votes were being counted.  However, petitioner provides no legal authority that would require the district to allow such inspection of the back of voting machines as votes are being counted.  Therefore, petitioner has not established that any irregularity occurred in this regard or that the lack of access to the back of the voting machines until after the votes were counted and recorded affected the outcome of the election, or otherwise vitiated the electoral process.

Petitioner argues that, upon examination of the voting booths on June 3, 2015, the seals affixed to two of the three middle school voting booths and one of the three high school voting booths were broken.  Petitioner asserts that the purpose of the seals is to prevent changes to the number of votes cast and recorded.  Respondents note that not one change occurred on the vote totals of the three voting machines at issue between the official count on May 19, 2015, and June 3, 2015, but that, in any event, all six machines were locked and were observed being opened with keys by the BOE representatives on June 3, 2015.  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).  On this record, petitioner has not established that the existence of three unsealed voting machines on June 3, 2015 had any impact on the outcome of the election or otherwise vitiated the electoral process.

Finally, with regard to the voting booths, petitioner contends that discrepancies exist between the number of votes recorded in the voting booths and the number of signatures in the voter sign-in books at both polling sites.  According to an affidavit from petitioner’s representative, on June 3, 2015, petitioner and her representatives counted 695 voter signatures in the six sign-in books used at the high school polling site.  According to the district clerk, she counted 684 voter signatures on June 9, 2015.  The public counters of the three voting machines from the high school polling site recorded 686 votes.  Similarly, while petitioner and her representatives counted 495 voter signatures in the four sign-in books from the middle school polling site, the district clerk counted 498 vote signatures on June 9, 2015.  The public counters of the three voting machines from the high school polling site recorded 498 votes.  The district clerk asserts that, at the June 3, 2015 inspection, petitioner’s representatives took an inordinate amount of time to review the same books and initially reported the total number of signatures from the middle school to be at least 100 votes above the public counter record.  As a result, according to respondents, petitioner’s representatives arbitrarily eliminated one tallied group of recorded signatures and capriciously arrived at their total number of signatures for the middle school polling site.

Respondents assert that any discrepancy between the number of voter signatures and the public counters constitute mere technical irregularities that did not affect the validity of the election.  Petitioner does not refute these claims in her reply.  As discussed above, 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).  While unfortunate, it is not unusual for discrepancies to exist between the machine count and the sign-in sheets at the conclusion of an election (Appeal of Georges, 45 Ed Dept Rep 453, Decision No. 15,380; Appeals of Laskas-Gillespie, 40 id. 568, Decision No. 14,559; Appeal of Diamond, 39 id. 541, Decision No. 14,304).  Even if petitioner’s allegations are true – that a nine-vote discrepancy exists for the high school polling site and a three-vote discrepancy exists for the middle school polling site – the parties do not dispute that petitioner lost by 14 votes.  Therefore, petitioner has failed to carry her burden of demonstrating that any discrepancy affected the outcome or vitiated the fairness of the election.

Petitioner also asserts that the district’s resources were improperly used to promote Sharpe and Mott.  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).

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 (Appeal of Wallace, 46 Ed Dept Rep 347, Decision No. 15,529; Appeal of Hager and Scheuerman, 43 id. 363, Decision No. 15,019).  Even indirect support, such as a school board giving a PTA access to its established channels of communication to parents to espouse a partisan position that the board itself was prohibited from doing directly, has been deemed improper (Stern, et al. v. Kramarsky, et al., 84 Misc 2d 447; Appeal of Wallace, 46 Ed Dept Rep 347, Decision No. 15,529; Appeal of Hager and Scheuerman, 43 id. 363, Decision No. 15,019).

Petitioner claims that the Uniondale Teachers Association (“UTA”) used the district’s email system to encourage district employees to vote for Mott and Sharpe, to volunteer with flyer distribution, and to vote in favor of the budget; and that district employees used the district’s telephone system to encourage residents to vote for Mott and Sharpe.  Specifically, petitioner alleges that on May 19, 2015, the UTA president sent an email to all district teachers, staff, and administration from his district email address, advocating for a “yes” vote on the district’s budget and urging district employees to re-elect Sharpe and Mott.

Respondents board, Mott, and Sharpe acknowledge that the UTA improperly used the district’s email system for partisan purposes.  However, respondents submit affidavits from the superintendent, Mott, and Sharpe, who state that they were unaware of the UTA’s use of the district’s email system prior to May 19, 2015.  Moreover, the superintendent states that, once he became aware, he immediately contacted the UTA president and admonished him for the unauthorized use of the district’s email system for partisan activities.  Respondents Sharpe and Mott also aver that they never approved, authorized, consented, directed, and/or sanctioned the use of the district’s email system for partisan purpose.

In response, petitioner argues that respondent board’s conduct violates the principles set forth in Appeal of Himmelberg and Little (46 Ed Dept Rep 228, Decision No. 15,490) (“Himmelberg”), which involved several partisan emails sent by a union president using a school district’s email system.  However, Himmelberg is distinguishable on its facts from the instant appeal.  Although the school board and superintendent in Himmelberg claimed that they were neither aware of the emails in advance nor authorized their distribution, the Commissioner found that claim to be unavailing under the facts presented.  Indeed, the record in Himmelberg indicated that, after the union president’s first email was sent on May 4, petitioner emailed the superintendent and the board president to express his objections thereto.  Thereafter, the union president sent additional partisan emails on May 9 and May 10, and petitioner again objected to the superintendent and board president via email, asking them to stop the alleged misuse of district resources.  To the contrary, in the instant appeal, petitioner objects to a single email sent by the union president and the record contains no evidence that respondent board knew about the email in advance or sanctioned its distribution (cf. Appeal of Himmelberg and Little, 46 Ed Dept Rep 228, Decision No. 15,490).

Petitioner also cites a previous Commissioner’s decision involving the district, Mott and the superintendent, in which the UTA was alleged to have improperly distributed partisan literature in teachers’ mailboxes (Appeal of Georges, 45 Ed Dept Rep 453, Decision No. 15,380).  Although I am concerned by the allegations raised by petitioner herein in light of the previous allegations of partisan activity described in Appeal of Georges, given that that appeal was decided ten years ago and, as noted above, there is no evidence in the record before me that respondent board knew about or sanctioned the email, I find that petitioner has not proven that respondent board engaged in any partisan activities sufficient to overturn the vote (see Appeal of Herloski, 50 Ed Dept Rep, Decision No. 16,089; Appeal of Huber, et al., 41 id. 240, Decision No. 14,676, petition to review dismissed January 7, 2003 [Sup. Ct., Albany Co., Special Term; Spargo, J.]; Appeal of Van Allen, 38 id. 701, Decision No. 14,122).  However, I admonish respondent board to review its policies on elections and the use of district resources to ensure that adequate safeguards are in place to prevent improper partisan political activity.

Petitioner also submits an affidavit from a district resident indicating that, on May 18, 2015, she received a telephone call from an individual who encouraged her to vote for Sharpe and Mott.  The district resident stated that the call was “from an employee in the District, who may have been” the district’s high school varsity football head coach, calling from what she believes was a district telephone number.  Respondents submit an affidavit from the head coach, who indicates that he never used any district telephones and/or resources on or about May 18, 2015, to encourage individual residents to vote for Sharpe and/or Mott.  Petitioner does not refute this contention in her reply.  Therefore, I find that petitioner has failed to carry her burden in this regard.

Petitioner asserts that the district clerk failed to post a list of absentee ballot recipients until May 14, 2015, less than seven days before the election.  Education Law §2018-a(6) provides that, in a district with personal registration, the board of registration must make available in the clerk’s office for public inspection during regular office hours until the day of the election a list of all the persons to whom absentee ballots have been issued. Petitioner asserts that she went to the district administrative office on May 13, 2015 to examine the list of absentee voters, but no list was posted. Respondents counter, and I agree, that there is no statutorily-prescribed time period in advance of the election by which the absentee voter ballot list must be made available for public inspection.  In any event, respondents assert that the district maintained an absentee voter ballot list which was available for public inspection as early as the week of May 4, 2015.  Petitioner does not submit any information or evidence in her reply to refute respondents’ assertions.  In light of the above, petitioner has failed to carry her burden of establishing her claim that the absentee voter ballot list “was first posted in the District on May 14, 2015, less than seven days before the election” in violation of the Education Law.

Although not specifically raised by petitioner, I note that, while Education Law §2018-a(6) does not specify a period in advance of the election that the list must be made available, it does require that such list be available for public inspection during regular office hours until the day of the election.  Respondent board admits through the district clerk’s affidavit that she “only work[s] on Tuesdays, Thursdays, and Fridays during a normal work week,” and the record contains no evidence indicating how the district arranges for public inspection of the absentee ballot list during regular office hours on Mondays and Wednesdays.  In this case, the record indicates that, on the same day petitioner visited the district clerk’s office to view the list, the district clerk contacted her and made arrangements for petitioner to view the list the next day.  Accordingly, any irregularity was de minimus and there is no evidence that the outcome of the election was affected or that the fundamental fairness of the election was vitiated.  Nevertheless, I remind respondent board of its statutory obligation to ensure that a list of absentee voters is available during regular office hours until the day of the election in accordance with Education Law §2018-a(6).

Finally, petitioner asserts that a district poll inspector was observed entering a voting booth with a voter and that voters were electioneering at the middle school polling site by encouraging other voters to vote for Sharpe and Mott, and that the district was aware of such electioneering.  The district clerk avers that she never received any complaint that any district election workers were inside the voting booths with any voter or that any voters were electioneering inside the polling sites.  Nevertheless, the district clerk explains that it is not uncommon for voters to request physical assistance with either the machine lever and/or to guide elderly voters into the appropriate machine.  Similarly, the district clerk and administrative assistant did not receive any reports that any individuals at either polling site were electioneering.  Petitioner did not respond to these claims in her reply.  As such, I cannot find that petitioner has established any irregularity occurred or that the outcome of the election was affected.

Accordingly, petitioner has failed to meet her burden in this matter, and the appeal must be dismissed.

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

THE APPEAL IS DISMISSED.

END OF FILE