Appeal of REV. WILLIAM A. WATSON, CHERYL WYCHE, and SHELLEY BRAZLEY from actions of the Board of Education of the Hempstead Union Free School District, Lamont Johnson and Melissa Figueroa, and Patricia Wright regarding an election.

Decision No. 17,082

(April 28, 2017)

Guercio & Guercio, LLP, attorneys for respondents, John P. Sheahan, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the actions of the Board of Education of the Hempstead Union Free School District (“respondent” or “board”), candidate and trustee Lamont Johnson (“Johnson”), candidate Melissa Figueroa (“Figueroa”), and district clerk Patricia Wright (“Wright”) (collectively, “respondents”) regarding the conduct of the district’s May 2016 school board election.  The appeal must be dismissed.

On May 17, 2016, the district held its annual school board election and budget vote.  The record indicates that voters were asked to elect three board members – two for three-year terms and one for a one-year term.  The following eight candidates ran in the election: Gates (a then-incumbent trustee), Stith, respondent Figueroa, respondent Johnson (a then-incumbent trustee), Pruitt, Jones, Simmons, and petitioner Brazley.[1]  The record indicates that on May 17, 2016, after the polls closed and absentee ballots had been counted, respondent Johnson had 624 votes, Gates had 613 votes, respondent Figueroa had 580 votes, and petitioner Brazley had 568 votes.  Thereafter, a board meeting commenced where the election results were announced and certified.  The record further indicates that, during this meeting, trustee Gates made a motion to file an injunction against the election results due to alleged irregularities in the election and, in particular, the counting of absentee ballots.  However, his motion was not seconded and, thus, failed.  This appeal ensued.  Petitioners’ request for interim relief was denied on June 27, 2016.

Petitioners restrict their challenge to the results of the trustee portion of the election and do not contest the passage of the 2016-2017 school year budget.  Petitioners allege that respondent Johnson and respondent Wright benefitted from the fraudulent additions of absentee ballots which provided respondent Johnson with 94 additional votes and allowed him to win a seat in the May 2016 election.  Petitioners state that this resulted in respondent Figueroa coming in third, thereby costing her a three-year term, and resulted in the removal of petitioner Brazley from an elected position on the board by 12 votes.  Petitioners further claim that the campaign staff for respondent Johnson and another candidate illegally hand-delivered absentee ballots to respondent Wright on election day, and that the “[p]oll workers/inspectors failed to conduct any thorough examinations of the signatures” or addresses to determine if an individual had already voted in person, was deceased, or was no longer a resident of the district.  Petitioners further allege that the poll workers and inspectors failed to endorse any objections as sustained or not sustained pursuant to Education Law §2018-a.  Petitioners state that the poll watchers and the district’s attorneys refused to hear the challenge to absentee ballots made by Thomas Parsley, the campaign manager for a group of candidates.

Petitioners also assert that respondents Johnson, Wright and other non-parties engaged in “fraudulent and improper activity” during the course of the election, including “voter intimidation and voter fraud.”  Specifically, petitioners allege that members of respondent Johnson’s campaign team visited residents who had not submitted applications for absentee ballots (and were not eligible to do so) and improperly caused them to vote for respondent Johnson using absentee ballots.

Petitioners also allege that respondents’ conduct during the May 17, 2016 board meeting[2] following the close of the polls violated Robert’s Rules of Order, Revised (“Robert’s Rules”) and the board’s policies, that respondents improperly considered certain absentee ballots, and that trustee Gates’s resolution at the board meeting was not properly considered.   Petitioners further claim that absentee ballots were “photocopied and reproduced outside of the [district’s] Clerk’s Office” in violation of the Education Law.

Petitioners seek the invalidation of the election of respondent Johnson and a determination that respondents Johnson and/or Wright and/or members of Johnson’s campaign team “engaged in voter fraud and voter intimidation” during the May 17, 2016 school board election.  Petitioners also seek an investigation into the “election activities conducted by all interested parties in the Hempstead School Board election.”

Respondents contend that petitioners have failed to carry their burden of proof, that their contentions are conclusory, that respondents’ conduct and actions were proper, and that any technical violations of law which have occurred with respect to the May 17, 2016 election do not warrant invalidation of the election results.[3]  Respondents also object to my consideration of the video of the election proceeding and subsequent board meeting because it constitutes hearsay.  Respondents argue that the three “supporting affidavits” submitted by petitioners are “speculative” because they merely state, conclusively, that the affiants are witnesses to the “within actions” discussed within the petition with no reference to the specific occurrences or facts known to them to support the petition’s contentions of “voter fraud” and “intimidation” or to provide the necessary evidentiary foundation for their consideration.  Moreover, respondents state that respondent Johnson defeated petitioner Brazley by 56 votes, and that even if three voters who submitted affidavits did not intend to vote for Johnson, it would not change the outcome of the election.[4]  Furthermore, respondents argue that review of the applications for the absentee ballots was conducted in conformity with the Education Law and that the district properly issued absentee ballots to those who were entitled to receive them.  Additionally, respondents maintain that they compiled and maintained all required lists of absentee voters, included those labeled as “permanently disabled,” and such lists were available for inspection, all as required by law.  Finally, respondents argue that the absentee ballots that were received and reviewed, and any challenges made to their counting, were handled in a manner consistent and proper under the law.

First, I must address a procedural matter.  Respondents object to the consideration of petitioners’ video, which allegedly depicts the counting of ballots and the board meeting on May 17, 2016.  Respondents contend that the video is hearsay evidence that should not be considered.  However, hearsay evidence is admissible in administrative hearings (see Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of Galperin, 51 Ed Dept Rep, Decision No. 16,297; judgment granted dismissing petition, Sup Ct., Albany Co., August 10, 2012).  Here, the video, which is approximately 21 minutes long, highlights the counting of the absentee ballots and portions of what is assumed to be the board meeting at issue in the instant appeal.  Therefore, I find that the video is relevant to the instant appeal and have considered and weighed it accordingly.

Turning to the merits, I note at the outset that petitioners raise numerous claims of impropriety regarding the May 17, 2016 election including, fraud, voter intimidation, and irregularities surrounding the absentee ballots.  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 also 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 witnesses at the polling site observed members of the campaign staff for respondent Johnson and another candidate hand-deliver “scores of improper absentee ballots” to respondent Wright at the polling place on election day.  However, the Commissioner has explicitly held that hand-delivery of sealed absentee ballots to the district clerk at the polling place on the day of the election is appropriate,  stating “there is nothing in the law that prohibits such conduct” (see Appeal of Touré, et al., 54 Ed Dept Rep, Decision No. 16,660).

Petitioners also object to the circumstances surrounding the canvassing of absentee ballots, stating that an individual, Thomas Parsley, made valid objections based on the ground that absentee ballot applications were not present at the polling place.  Petitioners argue that without an absentee ballot application for each such ballot present at the canvassing, there was no way to verify the authenticity of such ballots.  Additionally, petitioners claim that the district’s list of individuals who received absentee ballots was not posted in a timely or conspicuous manner for candidates or their representatives to challenge the issuing of the absentee ballot(s).

Education Law §2018-a(11), applicable to the instant appeal,[5] states in part that:

During such examination any qualified voter present in the polling place may object to the voting of the ballot contained in any envelope upon the ground or grounds (a) that the person named thereon is not a qualified voter of the school district, or school election district (where applicable), or (b) that he was within the county or city while the polls of the election were open ... or (c) that he was able to appear personally while the polls were open, in cases where the ballot was obtained upon the ground that the voter was a patient in a hospital located within the county or city or detained or confined in a jail located within the county or city or upon the ground of inability to appear personally at the polling place on the day of the election because of illness or physical disability, or (d) that he was not entitled to cast such ballot.

There is no requirement under Education Law §2018-a that a district clerk maintain absentee ballot applications at the polling place for inspection on the date of the election.  The permissible grounds for objection to the voting of an absentee ballot are identified above and do not include objections that the absentee ballot applications were not present at the polling site pursuant to Education Law §2018-a(11).[6]  I also note that verification of absentee ballots is to be conducted by comparison of the signature on the absentee ballot envelope to the signature on the register pursuant to Education Law §2018-a(10).

Petitioners further claim that the list of voters who were issued absentee ballots was not properly maintained.  However, respondent Wright states in her affidavit that “the name of each individual issued an absentee ballot was placed upon a list of all persons to whom absentee voters were issued, as required by [Education Law] Section 2018-a(6) of the Education Law,” and “voters whose names appeared on the ‘permanently disabled’ list were issued absentee ballots in the manner set forth at [Education Law] Section 2018-a(6).”  Respondent Wright further avers that: “the list of all persons to whom absentee voters were issued was maintained in my office until the date of the election in compliance with Section 2018-a(6) of the Education Law”; “absentee ballots were compared to the list of names of individuals to whom absentee ballots were issued.”  “Absentee ballots were then deposited in a locked box at the polling place”; “the absentee ballots were examined for signature and publicly displayed to the election inspectors and the public; each name on the absentee ballot having been compared to the Registration Books and such individual having been found not to have voted in the election on that day”; and that “no absentee ballots received after 5:00 p.m. on the day of the budget vote and election were included in the tally of the vote.” 

Petitioners offer only conclusory statements that they were denied access to the district’s absentee voter list and, as noted above, have not submitted a reply or other evidence to refute these sworn assertions.  Similarly, petitioners provide no evidence that the list was not maintained or created as required by law.  Under these circumstances, petitioners have failed to meet their burden of demonstrating a clear legal right to the relief requested.

Next, petitioners request that I set aside the results for respondent Johnson’s election because he, respondent Wright, and/or individuals acting on behalf of respondent Johnson’s campaign engaged in voter fraud and intimidation.[7]  Petitioner alleges several acts of fraud and intimidation committed by campaign workers for respondent Johnson, including “strong arm[ing]” voters including seniors, individuals with disabilities, and low-income individuals to vote for Johnson; using “relationships with youth and members of the community to steal their identity and cast absentee votes on their behalf”; presenting residents with a “form and ask[ing] them to sign their names and check off respondent Johnson’[s] name in the ballot boxes”; allowing respondent Johnson’s campaign team to vote on district residents’ behalf; and improperly seeking absentee ballot applications for voters who did not meet eligibility requirements to vote by absentee ballot.[8]

 In support of their argument, petitioners cite to Appeal of the Weller Library Commission, 42 Ed Dept Rep 338, Decision No. 14,875, arguing that this decision held that inducing voters to cast an absentee vote by delivering both the application and the ballot to the voter warranted annulling the election.  However, this appeal is distinguishable from Weller Library Commission because Weller Library Commission was resolved under Education Law §2018-b and, more significantly, involved serious allegations of fraud which were “supported by evidence suggesting that a board member induced several voters to file false applications.”

Here, unlike Weller Library Commission, petitioners have failed to allege anything more than mere conclusory assertions of voter fraud and/or intimidation. The three “supporting affidavits” submitted by petitioners are virtually identical, and each states in a conclusory manner that the affiant is a “witness to a section in the within action” and do not reference any specific occurrences or facts to support petitioners’ allegations of voter fraud and/or intimidation.  Moreover, even assuming, arguendo, that the affidavits prove that the affiants’ votes were fraudulently secured, three votes would not be sufficient to change the outcome of the election (see e.g. Appeal of Zacarro, 35 Ed Dept Rep 255, Decision No. 13,533 [election results upheld where two affidavits stated that affiants were not permitted to vote and would have voted for petitioner where two votes would not have changed the outcome of the election]).  Thus, on this record, I find that petitioners have not proven that such alleged conduct occurred or that it affected the outcome of the election.  Therefore, petitioners have not carried their burden of proof with respect to these claims.

Petitioners additionally assert that absentee ballots were photocopied and reproduced outside of the district clerk’s office in violation of the Education Law.  This claim, too, is unsupported by any evidence in the record.  Respondent Wright, the district clerk, avers that “no absentee ballots were photocopied and/or reproduced outside of my office.”  Petitioners submit no evidence to the contract and, thus, petitioners’ claim must be rejected.

Petitioners further contend that respondent board’s meeting on May 17, 2016 violated the board’s policy §2350, titled “Board Meeting Procedures,” which, among other things requires that “board meetings be conducted in an orderly manner.”  Additionally, respondent board policy §2352 provides that:

Unless otherwise provided in the Boards policies governing its internal operations and procedures, Roberts Rules of Order, Revised, shall be its official guide to the conduct of official meetings.  The Board President has discretion with the agreement of the rest of the Board to suspend the Rules of Order.

The Commissioner of Education has the authority to enforce a board policy (Appeal of Fusco, 39 Ed Dept Rep 836, Decision No. 14,396; Appeal of Pulvermacher, 36 id. 333, Decision No. 13,740). However, the Commissioner will exercise this authority only when a 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).

No such showing has been made here.  Petitioners merely state that respondent Wright announced the election results and the adoption of the 2016-2017[9] budget at the board meeting, and that a motion by trustee Gates failed because it was not seconded.  While I note that the video contained in the record indicates a high level of controversy during these proceedings, it is unclear what part(s) of the meeting petitioner alleges violated the above polices, and petitioners do not offer an explanation in their petition.  Thus, petitioners have not established that respondent board’s meeting on May 17, 2016 violated board policy §2350 or §2352.

Finally, petitioners have requested “a thorough investigation” of the election activities “conducted by all interested parties in the Hempstead School Board election.”  To the extent petitioners request that I conduct an investigation into this matter, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).  Therefore, petitioners’ request that I conduct an independent investigation into the alleged incidents must be denied.

Although the appeal must be dismissed, I am compelled to comment on the controversy surrounding the district’s elections in recent years, which, as evidenced by the record in this case, which includes a video of part of the May 17, 2016 proceedings, continues to plague this district.  In 2014, the Commissioner overturned the results of the district’s May 2014 election as between Maribel Touré and Betty Cross (Appeal of Touré, et al., 54 Ed Dept Rep, Decision No. 16,660) and the 2015 election results were also challenged in Appeal of the Bd. of Educ., 55 Ed Dept Rep, Decision No. 16,878.  In light of the fact that the district’s 2014, 2015, and 2016 elections have now been subject to challenge, I remind the district and the board of their obligation to comply with the decision and order in Appeal of Touré, et al., including the obligation to conduct all school board elections in accordance with all applicable provisions of law and regulation, and I admonish the district and the board to take all steps necessary to ensure that such controversy does not continue and that the district’s leadership and resources are focused on the paramount goal of providing successful outcomes for students.  Finally, in light of the above, I am directing my Office of P-12 Education to provide guidance and technical assistance to the district to ensure that this occurs.

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

THE APPEAL IS DISMISSED.

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