Appeal of LYNELLE JARMOND and GRACE JOHNSON from action of the Board of Education of the Wyandanch Union Free School District, Thomas Tolliver, Shirley Baker, Stephanie Howard, Rutha Bush, and Lisa L. Hutchinson[1], relating to an election.

Decision No. 17,108

(June 21, 2017)

Guercio & Guercio, LLP, attorneys for respondent Board of Education of the Wyandanch Union Free School District, Lisa L. Hutchinson, Esq., of counsel

ELIA, Commissioner.--Petitioners, Lynelle Jarmond and Grace Johnson, appeal the actions of the Board of Education of the Wyandanch Union Free School District (“respondent board”), and Thomas Tolliver, Board President (“respondent Tolliver”); Shirley Baker, Board Vice President (“respondent Baker”); Rutha Bush, Election Supervisor (“respondent Bush”); Stephanie Howard, District Clerk (“respondent Howard”); and attorney Lisa L. Hutchinson (“respondent Hutchinson”)(collectively, “respondents”), regarding the process and results of the May 19, 2015 election.  Petitioners also seek the removal of respondents Baker, Tolliver, Howard, Bush and Hutchinson pursuant to Education Law §306.  The appeal must be dismissed and the application denied.

 On May 19, 2015, respondent board held its annual election.  Three board seats were contested at the election.[2]  Petitioner Lynelle Jarmond ran for the seat held by respondent Tolliver, and was defeated by 13 votes.  Petitioner Johnson served as a poll watcher.  The election results were as follows:

Incumbent Charlie Reed:      233 votes

Challenger Moneik Hatcher:   234 votes[3]

Incumbent Shirley Baker:          236 votes

Challenger Joval Nance:      230 votes

Incumbent Thomas Tolliver:   240 votes

Challenger Lynelle Jarmond:  227 votes

Petitioners allege numerous irregularities in the conduct of the election which they claim affected its outcome. Specifically, petitioners assert improprieties involving electioneering, unqualified voters casting ballots, and bias which affected the electoral process. Petitioners further allege that respondent Tolliver engaged in “willful misconduct, willful disobedience, unethical behavior, fraudulent activities against lawful rules and regulations, policies and decisional authorities prohibiting such,” and that respondents Howard, Bush and Hutchinson failed to perform the duties entrusted to them during the election by engaging in “unethical” and biased behaviors which “poisoned the fairness of the electoral process and breached lawful rules and regulations plus decisional authorities governing such.”

Petitioners contend that, but for the various alleged fraudulent and illegal activities, petitioner Jarmond would have been successful in overcoming her 13 vote deficit and gaining a seat on the board.  Petitioners seek the invalidation of the May 19, 2015 election results and the removal of respondents Tolliver, Baker, Howard and Hutchinson from their “titles and electoral services” with respondent board.      

Respondents contend that the appeal must be dismissed for failure to join a necessary party and because the appeal is untimely.  Respondents also contend that petitioners have failed to demonstrate a clear legal right to the relief requested and failed to meet their burden of proof.  Respondents assert that petitioners’ allegations are speculative, that no electioneering occurred, and that the election was properly conducted.  In addition, respondents assert that petitioners’ challenges to the qualifications of voters and the conduct of poll watchers are untimely and meritless.  Respondents also deny petitioners’ claim that Hutchinson, as counsel for the board, failed to perform her duties.  Finally, respondents deny that any irregularities occurred and that, even assuming, arguendo, that they did, such irregularities did not affect the outcome of the election.          

I will first address the procedural issues.  Respondents object to the content of petitioners’ reply, contending that it contains new allegations which should not be considered in this appeal.  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 the 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.

Respondents next assert the appeal must be dismissed for failure to join a necessary party.  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 assert that candidate Moneik Hatcher is a necessary party to the appeal and that petitioners’ failure to join her warrants dismissal.  Petitioners do not contest any aspect of the seat-specific election involving Ms. Hatcher and limit their requested relief to annulment of the May 19, 2015 election results for the other two board seats.  Under these circumstances, I agree with petitioners and decline to dismiss the appeal for failure to join Ms. Hatcher.

Nevertheless, the appeal must be dismissed as untimely.  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).  However, with respect to appeals involving school district elections, I have held that it would be unreasonable and detrimental to the efficient resolution of a petitioner’s claims to require that petitioner institute separate appeals with respect to acts comprising a series of events closely related to the election (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 Maliha, 41 id. 367, Decision No. 14,716).  In such circumstances, even though the appeal involves acts occurring more than 30 days from the date the appeal is commenced, I have declined to dismiss the appeal as untimely provided the appeal is commenced within 30 days of the election (see 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 Maliha, 41 id. 367, Decision No. 14,716).

The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).

Here, the election and the actions giving rise to petitioners’ removal application occurred on May 19, 2015.  Accordingly, petitioners had until June 18, 2015 to commence an appeal.  Petitioners served the petition on June 24, 2015 and offer no excuse for the delay other than a misunderstanding as to whether the 30-day period included weekends and holidays.  Except in unusual circumstances, however, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  No such circumstances are present here.  Thus, the appeal must be dismissed as untimely.

Additionally, petitioners’ removal application must also be denied for failure to comply with Commissioner’s regulation §277.1(b).  Section 277.1(b) of the Commissioner’s regulations requires that notice be given to the officer whose removal is sought in a form substantially similar to that provided within the regulation (see Application of McCart, McCart and Heaney, 39 Ed Dept Rep 534, Decision No. 14,302).  The notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  Here, petitioners used the notice prescribed under 8 NCYRR §275.11(a) for appeals brought under Education Law §310 and also added the following statement:  “respondents [] are respectfully noticed pursuant to Education Law Sections 306 and 310; 8 NYCRR 277.1(b); 275.11, respectively.” However, such statement is not substantially similar to that provided in §277.1(b) as it does not specifically advise a school officer than an application is being made for his or her removal from office.  A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335; Application of Carrion, 50 id., Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050; Application of McCart, McCart and Heaney, 39 id. 534, Decision No. 14,302).  It is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Appeal of Kelly, 45 Ed Dept Rep 38, Decision No. 15,253; Application of Knapp, 41 id. 41, Decision No. 14,608).^[4]

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).

It is similarly 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).

It is similarly 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).

Petitioner Jarmond asserts that she witnessed respondent Baker electioneering by engaging in conversation with district voters within the 100-foot polling point markers.  Petitioner Jarmond further claims that she watched respondent Baker within the polling point boundaries throughout the entire election process, during which time she made “coercive requests to seize ballot votes.”  Petitioners also submit an affidavit of Rita Moore, who avers that respondent Baker and two members of respondent Baker’s family entered and exited the polling area to escort voters to and from the polling center.  Ms. Moore further avers that she spoke to respondent Baker about this “improper behavior” and that Ms. Baker allowed the improper activity to continue.  In addition, Ms. Moore contends she had captured photographic evidence of the alleged misconduct, which petitioners purport to attach as an exhibit to their petition.

Respondent Baker denies all allegations of electioneering within 100 feet of the polling place and asserts that at all times during the election, except for trips to the restrooms located inside the school, she remained outside of the 100-foot distance markers. Respondent Baker denies physically escorting any individuals to or from the polling place and states that, to her knowledge, her family members did not engage in any such activities.

On this record, I cannot conclude that any of the respondents engaged in electioneering which affected or compromised the fairness of the election.  Although respondent Bush avers that she spoke to “one or more Board candidates” to assure that no electioneering was taking place and directed these individuals to adhere to appropriate procedures, this does not demonstrate that any respondent, or anyone else, engaged in electioneering.[5]  Further, the photographs submitted by petitioners are not dispositive of this issue.  Petitioners submit two color photographs, which they claim “reveal [] Respondent Baker and Respondent Bush engaged in conversation outside the polling center door.”  One photograph depicts a single woman facing the camera and the second depicts two individuals facing away from the camera.  The identity of the two individuals is not self-evident, and the record contains no evidence that the two individuals in the second picture are, in fact, respondents Baker and Bush.  Therefore, petitioners have failed to meet their burden as to this claim.

Petitioners also assert that respondent Hutchinson was improperly absent from the polling place for several hours and that, in her absence, a 100-foot marker was improperly placed too close to the election site.  Petitioners further assert that “the attorney” was unavailable to address concerns that “voters mentally possessed throughout the voting process.”  However, petitioners cite no legal requirement that a school attorney be physically present at a polling site or make him or herself available to answer voter questions.[6]

Petitioners also allege various irregularities regarding voter status and the casting of ballots.  Petitioners submit the affidavit of Charles Brown, who claims that he was deprived of the right to vote because he was informed that he was not registered to vote, was refused guidance as to how he could vote and was ultimately told to leave.  Mr. Brown also complains that an unidentified individual’s “body language” suggested that he should leave.  These allegations do not support a finding that Mr. Brown was refused the right to vote.  Crucially, Mr. Brown does not indicate whether he is actually registered to vote.  Moreover, his interpretation that an unidentified individual’s body language suggested that he should leave is too vague to support a finding that he was improperly denied the right to vote.

Additionally, petitioner Johnson avers that she observed an adult female complete an absentee ballot while at the voting table and submit said ballot at the ballot place.  Petitioner Johnson further avers that she observed board member Nancy Holliday assisting her husband enter information on his ballot and that respondent Baker failed to assist an elderly woman who was struggling to fill in her ballot.  Petitioner Johnson also alleges that she was told by respondent Bush to abstain from issuing instructions or holding any conversations in the voting areas by cell phone or otherwise, while respondent Bush allowed her friends and church affiliates to engage in such activity. 

Petitioner Johnson further alleges that four voters, whose ballot sheets were rejected because of mistakes made on the ballot sheet, had their ballot placed in the back of the voter’s sign-in book.  Petitioner Johnson also complains that poll watchers were not afforded the opportunity to see the individual votes on the mail-in ballots, which were allegedly read only once.  By contrast, petitioner Johnson alleges that when the vote count was taken from the machine, respondent Bush permitted poll watchers to observe the sheet and read, out loud, each individual candidate’s vote count three times.

Petitioners additionally allege, in an affidavit submitted by Ms. Marvina Jarmond, that a “young lady”, recognized by the affiant, filled out “paperwork” at a table located inside the polling place and handed it to an election coordinator who “dropped it into the Absentee Ballot Box.”  Petitioners further assert that respondent Tolliver’s daughter illegally voted in the election.

Respondents deny all of the above allegations and submit affidavits which refute petitioners’ contentions.

Even assuming that petitioners’ allegations are true, petitioners have not shown that any of the allegedly improper actions had an effect on the outcome of the election.  As stated above, to invalidate the results of an election, petitioners must establish not only that an irregularity occurred, but that the irregularities actually affected the outcome of the election; speculation as to the possible existence or effect of any irregularities is insufficient to annul election results.  Here, petitioners failed to file a sufficient number of affidavits to show that respondent Jarmond, if not for the alleged improprieties, would have overcome the 13-vote deficit she faced in the election results.

Moreover, petitioners’ voter qualification challenges cannot be resolved in this appeal as petitioners failed to raise these challenges at the local level.  A qualified voter may challenge, either prior to or at the district meeting, the qualifications of any other voter (Appeal of Dodson, 54 Ed Dept Rep; Appeal of Brannon, 42 id. 220, Decision No. 14,830; Appeal of Crowley, et al., 39 id. 665, Decision No. 14,345; Appeal of Fraser-McBride, 36 id. 488, Decision No. 13,783).  A person who has the right to challenge a voter and permits him to vote without such challenge is not allowed to object to such voter’s participation (Appeal of Brannon, 42 Ed Dept Rep, 220 Decision No. 14,830; Appeal of Crowley, et al., 39 id. 665, Decision No. 14,345; Appeal of Fraser-McBride, 36 id. 488, Decision No. 13,783).  Because there is no evidence that petitioners challenged the qualifications of any voter at the time of the election, they may not do so here.[7]

With respect to petitioners’ allegations that poll watchers were unable to watch the canvass of absentee ballots, petitioners have presented no affidavit from any poll watcher that a request to remain at the polling site after the close of the polls was denied, or that they objected to any aspect of the election on election day.  Moreover, I have previously held that there is no requirement that absentee ballots must be opened in the presence of the candidate or their representatives (see Appeal of Georges, 45 Ed Dept Rep 453, Decision No. 15,380).

In sum, petitioners have not established that any alleged irregularities actually affected the outcome of the election in question, were so pervasive that they vitiated the electoral process, or demonstrated informality to the point of laxity in adhering to the legal requirements for a district election.  All remaining allegations by petitioners which have not been addressed in detail in this decision are conclusory in nature and unsupported by the evidence in the record.

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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