Appeal of DAVID ROGERS and DANIEL T. WARREN from action of the Board of Education of the West Seneca Central School District, Diane Beres, Janice Dalbo, and Jody Peccia, regarding   an election.

Decision No. 18,119

(May 4, 2022)

Hodgson Russ, LLP, attorneys for respondent, Lindsay A. Menasco and Andrew J. Freedman, Esqs., of counsel

ROSA., Commissioner.--Petitioners appeal from action of the Board of Education of the West Seneca Central School District (“respondent” or “board”) in connection with the district’s 2020 school board election.  Petitioners also join Diane Beres, Janice Dalbo, and Jody Peccia, candidates who ran for election in 2020 (the “candidates”), as necessary parties. [1]  The appeal must be dismissed.

On June 16, 2020, the district held its annual meeting for the election of school board members and budget votes.[2]  Petitioner Rogers was a candidate for a seat on the board of education.  Due to the ongoing COVID-19 pandemic, the election was conducted entirely by absentee ballot (see Appeal of Puskuldjian and Romano, 61 Ed Dept Rep, Decision No. 18,048).  Following its examination and canvass of the votes, the board determined that 8,990 absentee ballots were valid and “832 absentee ballots did not meet statutory requirements and therefore could not be counted.”  Petitioner Rogers did not win a seat on the board of education, receiving 191 fewer votes than the candidate with the fewest votes to win a seat on the board.  This appeal ensued.  Petitioners’ request for interim relief was denied on July 8, 2020.

Petitioners allege numerous instances of election-related impropriety.  Petitioners seek to set aside the election results and hold a new vote and election.  In the alternative, petitioners request a manual recount of all votes cast with an opportunity for the candidates to review and challenge the 832 invalidated ballots.

Respondent argues that the petition must be dismissed for improper service, verification, and, in part, as beyond the scope of the authority of the Commissioner of Education.  On the merits, respondent contends that petitioners have failed to establish that any alleged irregularities occurred during the election, let alone irregularities 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.  Further, respondent denies that petitioners, or any voters, were denied the right to challenge absentee ballots.

I must first address several preliminary matters.  Respondent objects to the contents of petitioners’ memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR 276.4).  It may not be used to add belated assertions or exhibits not included in the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).  Therefore, while I have reviewed the memorandum of law, I have not considered those portions containing new allegations, assertions, or exhibits.

Additionally, the parties each seek to submit additional papers.  Additional affidavits, exhibits, and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR 276.5).  While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I find that the pleadings and memoranda of law provide a sufficient basis upon which to render my decision, and the parties have not provided sufficient justification for the introduction of additional documents.  Therefore, I have not accepted these additional submissions into the record.

Next, respondents contend that because petitioners failed to file a reply, all statements contained in its answer should be deemed true.  Section 275.14 of the Commissioner’s regulations states that a petitioner shall reply to each affirmative defense, and the result of a petitioner’s failure to do so is that the facts alleged are considered to be true (Appeal of Carmand and White, 54 Ed Dept Rep, Decision No. 16,689).  I am not bound, however, to accept respondents’ legal conclusions regarding the affirmative defenses, and I will still conduct a legal analysis of any admitted facts with respect to each affirmative defense (see Appeal of S.S., 58 Ed Dept. Rep., Decision No. 17,492; Appeal of Carmand and White, 54 id., Decision No. 16,689).

Respondents also argue that the petition must be dismissed for improper service.  Section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Additionally, effective April 7, 2020, section 275.8 (f) of the Commissioner’s regulations allowed for alternative service during the time period of any movement restrictions or school closures directed by the Governor pursuant to an Executive Order during the COVID-19 crisis. Specifically, the regulation states, in pertinent part:

[A] party may serve pleadings and supporting papers by the following alternative means: (1) by mailing the petition, notice of petition and all supporting papers by first class mail in an envelope bearing the legend “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... in the case of a school district, to the attention of the district clerk and superintendent of schools, ... and (2) on the same date as the mailing, emailing the petition, notice of petition and all supporting papers under the subject heading “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... in the case of a school district, to both the district clerk and superintendent of schools....[3]

Here, petitioners submitted an affidavit of service reflecting service upon the district clerk, superintendent, and candidates by mail and email in accordance with section 275.8 (f) on June 30, 2020 (8 NYCRR 275.6).  While counsel for respondent asserts in an affirmation that petitioners “failed to mail and/or email the petition to the Superintendent,” this assertion does not rebut petitioners’ sworn allegation.[4]  In any event, even if petitioners had not served the superintendent, respondent has not identified any prejudice arising from this technical noncompliance.  The overall intent of the amendment to 8 NYCRR 275.8 (f) was “to address numerous issues resulting from the interruptions caused by the COVID-19 crisis.”  As such, I find that it is within the spirit of the amendment to permit alternative service under the circumstances (see Appeal of D.M. and J.D., 61 Ed Dept Rep, Decision No. 18,031; Appeal of Moss and Sealy, 60 id., Decision No. 18,001; Appeal of Megerell and Yager, 60 id., Decision No. 17,996).

Respondent further contends that the appeal must be dismissed for lack of verification.  Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580).  I decline to dismiss the petition for lack of proper verification because at least one of the petitioners properly verified the petition, as required by section 275.5 (a) of the Commissioner’s regulations. 

Finally, I decline to find that candidates are in “default” based upon counsel for respondent’s failure to identify them in the opening paragraph of its answer.  Counsel for respondent has indicated that it represents the candidates for purposes of this appeal, both in its notice of appearance (see Executive Law § 166) and in its papers submitted in opposition to petitioners’ application for a stay order (see 8 NYCRR 276.1 [a]).  The fact that respondent did not identify the candidates in the opening paragraph of its answer was harmless under the circumstances.

Turning to 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).

 Petitioners have failed to meet their burden of proof.  Petitioners assert that:

• the district did not have an effective means of giving all qualified voters an absentee ballot;
• the district did not provide voters with instructions as to how they may exercise their right to challenge votes cast by absentee ballots as provided by Education Law § 2018-a (11);
• “[n]umerous voters who timely requested absentee ballots did not receive them and were therefore disenfranchised”; and
• petitioners and “all voters” were not provided with the opportunity to challenge any absentee ballot prior to the election.

Despite these claims, which respondent denies, petitioners submit no affidavits or other evidence to establish that any irregularities occurred or that any person was unable to vote based on such irregularities.  Furthermore, respondent correctly explains that, as a district that uses poll registration (see Education Law § 2018-b), the provisions of Education Law § 2018-a (11) concerning the opening of absentee ballots in public are not applicable (Appeal of Goethe and Bennett, 61 Ed Dept Rep, Decision No. 18,108).[5]

With respect to their remaining claims, petitioners merely submit copies of the meeting minutes for the district’s May 5, 2020 and June 8, 2020 meetings.  There is no information in these documents establishing that respondent or the candidates violated any election requirement.  Accordingly, petitioners have not met their burden of establishing that any election 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 (see Appeal of Como, 61 Ed Dept Rep, Decision No. 18,085; compare Matter of Levine, 24 Ed Dept Rep 172, Decision No. 11,356).

In light of the foregoing, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE