Appeal of JAMES WASHINGTON from action of the Board of Education of the Westbury Union Free School District, Dr. Mary Lagnado, Sherley Cadet, Rodney Caines, Pless Dickerson, John Simpkins, Jr., Cynthia Williams and Larry Wornum regarding an election.

Decision No. 17,024

(January 17, 2017)

Jaspan Schlesinger LLP, attorneys for respondents, Lawrence J. Tenenbaum, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges actions of the Board of Education of the Westbury Union Free School District ("respondent board") with respect to the annual budget vote and election of board members ("election") held on May 19, 2015.  The appeal must be dismissed.

On May 19, 2015, respondent board conducted its annual district meeting to vote on the district's annual budget and elect candidates to the board of education. The election resulted in voters approving the proposed budget for the 2015-2016 school year, and in two new board members being elected.  Three board candidates appeared on the ballot, respondents John Simpkins, Jr., Pless Dickerson and Larry Wornum.  The results of the board election were as follows:

Candidate Simpkins, Jr. - received 766 votes

Candidate Dickerson - received 718 votes

Candidate Wornum - received 516 votes

In addition, several write-in candidates also received votes as illustrated below:

Cadet - received 90 votes

Sonta - received 1 vote

Derth - received 1 vote

Caines - received 1 vote

The proposed district budget was approved with 810 votes in favor and 463 votes opposed.

Petitioner alleges several irregularities relating to the conduct of the board election.  Petitioner alleges that no instructions were provided on how to cast a write-in ballot for a candidate not appearing on the ballot and that poll workers failed to provide him with assistance once he was in the voting booth.  Accordingly, petitioner argues that the resulting confusion denied voters the opportunity to cast write-in ballots.  Petitioner further argues the voting machines used in the election were not uniform throughout the district in violation of Education Law §2035 and did not provide slots for votes for write-in candidates equal to the number of seats to be filled.

Petitioner also submits an affidavit from a voter who alleges that there were no pens or pencils available at the Park Avenue voting site to write-in the name of a write-in candidate, and that she was not provided appropriate assistance by district personnel.  Petitioner requests that the results of the election be annulled and a new election ordered.  In addition, petitioner seeks an order that in future elections respondent board and respondent Cynthia Williams, district clerk, provide for the casting of write-in ballots on voting machines equal to the number of board vacancies to be filled.  Lastly, petitioner requests an order that all future elections for seats on respondent's board be for specific seats, as opposed to at-large.

Respondents allege the petition must be dismissed for failure to join all necessary parties.  Specifically, respondents contend that failed board write-in candidates Sonta and Derth should have been joined as parties to the appeal.  Additionally, respondents contend that petitioner failed to properly serve Sherley Cadet, a named respondent.

In addition, respondents allege that voters were provided an opportunity to cast write-in ballots and that instructions on how to cast write-in ballots were available at the polling place, that pens or pencils were available at each polling place to voters wishing to cast write-in votes and that the election was properly conducted in all respects.  Respondents further argue that petitioner is seeking to require respondent board to have board candidates elected to separate specific offices rather than on an at-large basis, which under Education Law §2018(b) is a determination that must be made by the voters.  Respondents further argue that the petition is conclusory and speculative and petitioner has failed to meet his burden of proving that there were irregularities that actually affected the outcome of the election, were so pervasive that they vitiated the electoral process or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.

I must first address the procedural issues brought forth by respondents.  Respondents argue that the petition is defective due the failure to name and join all necessary parties to this appeal.  I am unpersuaded by this argument.

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).

Respondents contend that Sonta and Derth are necessary parties because they each received one write-in vote, but fail to explain how they would be adversely affected by an order directing a new election.  Since neither Sonta nor Derth would be harmed if the petition is granted and a new election ordered, neither can be characterized as necessary parties requiring joinder.

For similar reasons, I find no merit in respondents' allegation that the petition must be dismissed due to petitioner's alleged failure to properly serve named respondent Cadet.  Like Sonta and Derth, named respondent Cadet, who received 90 write-in votes in the election, was unsuccessful and respondents have not explained how a defeated write-in candidate would be adversely affected by a decision favorable to the petitioner ordering a new election.  Therefore, Cadet, although named as a respondent, cannot be considered a necessary party.  In addition, though the affidavit of service for respondent Cadet indicates she was personally served with the petition at the address of the district's high school, respondents have failed to prove that such service was defective.

Petitioner's request that I order respondents board and district clerk to have future board seats treated as separate specific offices rather than at-large seats must be dismissed for failure to state a claim upon which relief may be granted.  Under Education Law §2018(b), the district voters and not the board of education determine whether board members are elected to separate, specific offices or on an at-large basis.  If petitioner wishes to seek a change in this regard, he must submit a valid voter proposition for action at a future annual meeting or election (see Education Law §2018[b]).

Turning to 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).

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).

Respondents have provided a series of affidavits from the district clerk and election inspectors attesting that sample ballots with instructions on how to cast write-in ballots were available at each polling place and a copy of the sample ballot was posted in each voting booth.  These affidavits, as well as an affidavit from the general manager of the company that supplied the voting machines, further attest that the voting machines accommodated write-in ballots in the same manner as in past elections, with a row of levers or pointers running horizontally next to the nominated board candidates that, when depressed, allowed the voter to write-in another candidate, provided that the voter could not vote for more than two candidates.  In addition, the district clerk and the election inspectors aver that the procedures were uniform across polling places, that pens and pencils were made available at each polling place and that assistance on how to cast write-in ballots was provided when requested, but that election inspectors could not enter the voting booth to provide assistance once it was closed for fear of invalidating the votes.

On this record, I find that petitioner has failed to meet his burden of proving that there were irregularities that actually affected the outcome of the election, or were so pervasive that they vitiated the electoral process, or demonstrate a laxity in the conduct of the election that vitiates its fundamental fairness.  Petitioner alleges that he was confused about the procedures for casting write-in ballots and was unable to do so and that one other voter was not provided a pen or pencil and appropriate assistance in casting a write-in vote.   Even if I accept petitioner's allegations as true, the two successful board candidates won by margins of 250 and 202 votes respectively over the candidate with the third highest vote total.  Therefore, petitioner has failed to show that these alleged irregularities actually affected the outcome of the election.  Similarly, petitioner has failed to show that there were irregularities so pervasive that they vitiated the electoral process or that there was laxity on the part of respondent board that vitiated the fundamental fairness of the election.  In fact, the record establishes that a substantial number of write-in ballots were counted.  Therefore, petitioner's request that I annul the results of the election and order a new election must be denied. 

As to petitioner's request that I direct respondent board to provide slots for write-in candidates in future elections equal to the number of vacancies, on this record I find no basis for issuance of such an order.  Respondent has documented that that voting machines at use in the 2015 election accommodated write-in ballots in a manner that assured that voters could write-in up to two candidates, and I find no violation of Education Law §2035 in this regard.

Although the appeal must be dismissed, one final administrative matter remains.  Respondents have requested certificates of good faith for respondents Lagnado, Dickerson, Caines, Simpkins, Jr., and Williams pursuant to Education Law §3811(1). Such certification is solely for the purpose of authorizing the board of education to indemnify the individual respondents for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of their duties, as board members or other school officers. It is appropriate to grant such certification unless it is established on the record that the requesting board member or other school officer acted in bad faith (Application of Valentin, 56 Ed Dept Rep, Decision No. 17,014; Appeal of Berger, 56 id., Decision No. 16,996; Appeal of Fletcher and Ferguson, 55 id., Decision No. 16,901). In view of this decision, in which no findings have been made that any respondent acted in bad faith, they are entitled to the requested certificates. 

In light of this disposition, it is unnecessary for me to address any of petitioner's remaining contentions.

THE APPEAL IS DISMISSED.

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