Appeal of PETER M. FEDER from action of the Board of Education of the Bridgehampton Union Free School District regarding a budget vote.

Decision No. 18,066

(January 6, 2022)

Volz & Vigliotta, PLLC, attorneys for respondent, Michael G. Vigliotta and Anthony S. DeLuca, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Bridgehampton Union Free School District (“respondent”) in connection with the district’s 2021 budget vote.  The appeal must be dismissed.

At its May 18, 2021 annual meeting, the district announced that its budget proposition to exceed the tax levy limit failed.  A budget revote was held on June 15, 2021, at which time the budget proposition passed by a single vote (see Education Law § 2023-a [6]).  This appeal ensued.  Petitioner’s request for interim relief was denied on August 3, 2021.

Petitioner alleges two instances of irregularities during the June 15, 2021 budget revote.  First, petitioner claims that he viewed an individual’s name on the rolls who “sold her home and moved out of the district over a year ago.”  Second, petitioner asserts that a voter who voted at the May 18, 2021 election was not on the register for the June 15, 2021 revote.    Petitioner seeks a recount and an audit of the votes cast in the June 15, 2021 budget revote, as well as an examination of the voter rolls.

Respondent argues that the petitioner has not established that any alleged irregularities affected the outcome of the election, vitiated the electoral process, or demonstrated a clear and convincing picture of informality to the point of laxity. 

To invalidate the results of a school district election, the petitioner must either:  (1) establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or (2) demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (see Matter of Boyes v Allen, 32 AD2d 990, 991 [3d Dept 1969], affd 26 NY2d 709 [1970]; Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Levine, 24 id. 172, Decision No. 11,356, affd sub nom. Matter of Capobianco v Ambach, 112 AD2d 640 [3d Dept 1985]).  Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of an election are so pervasive as to vitiate the fundamental fairness of the election (see Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748).  It is also well settled that mere speculation as to the existence of irregularities or the effect of irregularities provides an insufficient basis on which to annul election results (Appeal of Holliday, 60 Ed Dept Rep, Decision No. 17,947; Appeal of Dodson, et al., 54 id., Decision No. 16,764).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner has not established any impropriety in connection with the June 2021 vote.  Initially, petitioner did not submit any evidence that the individual whom he claims moved prior to the budget revote actually voted on June 15, 2021.  Moreover, with respect to the individual who had been removed from the register, respondent’s district clerk avers that this individual voted by affidavit ballot, and that his vote was counted.  While this individual indicates in an email that it is “unclear to this day weather [sic] [his] vote was counted...,” this speculation does not rise to the level of proof.   As such, petitioner has not met his burden of proving the facts upon which he seeks relief.

Additionally, petitioner is precluded from challenging any voter’s ability to participate in the budget revote given his failure to do so at the time of the election.  A qualified voter may challenge the qualifications of any other voter either prior to or at the district meeting (Appeal of Jarmond, 56 Ed Dept Rep, Decision No. 17,108; Appeal of Crowley, et al., 39 id. 665, Decision No. 14,345).  A person who fails to make a timely challenge is precluded from doing so thereafter (Appeal of Jarmond, 56 Ed Dept Rep, Decision No. 17,108; Appeal of Brannon, 42 id., 220 Decision No. 14,830).  Here, the district clerk avers that, in accordance with Education Law § 2014, the voter register was available for inspection by voters five days before the revote and on the day of the revote.  She further avers that no one inspected it or submitted any challenges thereto.  Accordingly, petitioner is precluded from challenging any voter’s qualifications in this appeal.

Finally, insofar as petitioner requests a recount, Education Law § 2034 (6) (a) authorizes the Commissioner of Education to order a recount of the ballots in school district elections (Appeal of Holliday, 60 Ed Dept Rep, Decision No. 17,947; Appeal of the Bd. of Educ. of the Hilton Cent. Sch. Dist., 56 Ed Dept Rep, Decision No. 17,091; see generally Matter of Carville v Allen, 13 AD2d 866, 867 [3d Dept 1961]).  The Commissioner will not order a recount absent evidence of a substantial attack on the integrity of the tallies and the returns of the inspectors of election, such as a showing of fraud or improper conduct (Appeal of Gresty, 31 Ed Dept Rep 90, Decision No. 12,580; Matter of Murtaugh, 19 id. 179, Decision No. 10,086; Matter of Morehouse, 15 id. 27, Decision No. 9,060).  Petitioner’s only argument appears to be that the single vote margin presents grounds for a recount.  Absent any proof of fraud or improper conduct, however, there is no basis upon which to order a recount (Appeal of the Bd. of Educ. of the Massapequa Union Free School District, 59 Ed Dept Rep, Decision No. 17,747).

In sum, petitioner has failed to meet his burden of proof to establish that there were voting irregularities that affected the outcome of the election.  In light of the foregoing, I need not address the parties’ remaining arguments.

THE APPEAL IS DISMISSED.

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