Appeal of ANDREW COMO from action of the Board of Education of the Brentwood Union Free School District regarding an election.

Decision No. 18,085

(January 31, 2022)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Candace J. Gomez, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from actions of the Board of Education of the Brentwood Union Free School District (“respondent” or “board”) in connection with the district’s 2020 school board election.  The appeal must be dismissed.

On June 9, 2020, the district held its annual meeting and election.[1]  Petitioner, an unsuccessful candidate in the election, alleges numerous instances of election-related impropriety.  For example, he alleges that the current school board president was permitted into the counting site and, while there, spoke on his cell phone in violation of district rules; that a district resident was improperly informed that he had to prove that he had mailed his ballot; and that individuals responsible for counting ballots used their cell phones while counting ballots.  Petitioner also alleges that school district employees were afraid “that by signing their name to the outside of the ballot envelop [sic] the district would know who voted and who they voted for.”  Petitioner asserts that this impeded their ability to freely vote for the candidates of their choice.  Petitioner additionally complains about the use of mail-in voting procedures, asserting that district residents “deserve a fair and private vote by machine.”  Petitioner requests that the mail-in votes be set aside and a new vote be conducted using voting machines and “sign in books.”

Respondent argues that the petition must be dismissed for failure to join necessary parties; for improper service; and, in part, as beyond the scope of the authority of the Commissioner of Education.  On the merits, respondent argues that petitioner has failed to establish that any alleged irregularities occurred during the school district election, let alone those that affected the outcome of the election, vitiated the electoral process, or demonstrated a clear and convincing picture of informality to the point of laxity such that the results of the election should be overturned.

Initially, I must address a procedural matter relating to the scope of petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

The appeal must be dismissed for failure to join necessary parties.  A person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that a party be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition, informing the party to appear in the appeal and to answer the allegations contained in the petition (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517).  In an appeal regarding a school district election, the petitioner must join the district’s board of education as well as “each person whose right to hold office is disputed” (8 NYCRR 275.8 [d]; see Appeal of Bonelli, 59 Ed Dept Rep, Decision No. 17,795; Appeal of Duffy, 47 id. 86, Decision No. 15,634).

Petitioner seeks to have the results of the June 9, 2020 election set aside and a new election held, which could adversely affect the candidates who were elected to the board.  Moreover, as indicated above, section 275.8 (d) of the Commissioner’s regulations specifically requires joinder of “each person whose right to hold office is disputed” in an election appeal.  Therefore, the successful candidates in the district’s June 9, 2020 election are necessary parties, and petitioner’s failure to join them as such requires dismissal of this appeal (Appeal of Bonelli, 56 Ed Dept Rep, Decision 17,795; Appeal of McDonough, 54 id., Decision No. 16,752; Appeal of Pasquini, 53 id., Decision No. 16,500).

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, 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. 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 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 that respondent violated any legal requirement or that any of the acts of which he complains affected the outcome of the election.  Petitioner’s allegations are speculative and unsupported by evidence.  For example, petitioner alleges that “[t]he total numbers [sic] ballots returned to the district were never disclosed” and that “approximately 500 ballots were disqualified for reasons unknown.”  However, respondent’s answer includes a letter from its records access officer indicating that respondent did, in fact, provide petitioner with the total number of envelopes returned by the post office as well as the total number of ballots deemed invalid and the reasons thereto.  Additionally, petitioner submits no affidavits or other evidence to support his claim that district employees were unable to vote for their preferred candidates.  Petitioner’s allegations do not demonstrate that any irregularities occurred, let alone that they 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 (compare Matter of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, affd sub nom. Capobianco, 112 AD2d at 640).

Finally, respondents have requested a certification of good faith on behalf of each of its trustees 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).  The petition only names the board as a respondent; as such, it does not appear that “any action or proceeding” has been “brought against” any individual trustees (Education Law § 3811 [1]).  Nevertheless, to the extent that the individual trustees could be considered to be within the scope of this statute, I find that they are entitled to the requested certification.  

 To the extent petitioner’s allegations are not specifically addressed herein, I find them to be without merit.

THE APPEAL IS DISMISSED.

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