Appeal of JOSHUA SCHLESSEL from action of Theresa Bryant, in her capacity as district clerk of the West Hempstead Union Free School District regarding a school district election.

Decision No. 18,140

(July 6, 2022)

Guercio & Guercio, LLP, attorneys for respondent, Christopher F. Mestecky, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of Theresa Bryant in her capacity as district clerk (the “district clerk”) for the Board of Education of the West Hempstead Union Free School District (the “board”) regarding the district’s May 2021 school board election.  The appeal must be dismissed.

On May 11, 2021, the board held its annual budget vote and election.  In respondent’s district, candidates run for specific board seats, not at-large.  Voters considered candidates for two seats.  Challenger Barbara Hafner ran against incumbent Andrea Shinsato for the first open seat, while candidate Kurt Rockensies ran unopposed for the second seat.  Petitioner ran as a write-in candidate for both seats.  Candidates Shinsato and Rockensies were successful.  This appeal ensued.

Petitioner alleges that that there were numerous irregularities during the May 11, 2021 election and that the district clerk committed multiple violations of the Education Law.  Petitioner requests that the results of the election be overturned.

The district clerk argues that the appeal must be dismissed because petitioner failed to join trustees Shinsato and Rockensies, whom she alleges are necessary parties.  She further contends that petitioner has failed to establish a clear legal right to his requested relief.

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 May 11, 2021, election overturned, which could adversely affect trustees Shinsato and Rockensies.  These individuals were neither named in the caption of the appeal nor served with copies thereof.  As such, the appeal must be dismissed (8 NYCRR 275.8 [d]; Appeal of Katz and Herman, 61 Ed Dept Rep, Decision No. 18,071; Appeal of Puskuldjian, 61 id., Decision No. 18,048).

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).

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 primarily complains that the district invalidated ballots listing his name twice, once for each open seat.  However, the district clerk indicates that, although 496 ballots were invalidated for this reason, petitioner still could not have won either open seat even if those ballots had been counted.[1]  Petitioner has offered no evidence to support his allegations that the district clerk’s actions affected the outcome of the election.  In addition, petitioner has not provided any evidence, such as affidavits from district voters, to establish that actions he complains of impacted the results of the election in any way.  Thus, petitioner has failed to meet his burden of proving that the district clerk committed election irregularities that affected the outcome of the election. 

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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