Appeal of TIFFANY L. ECKLES from action of the Board of Education of the Evans-Brant Central School District regarding an election.

Decision No. 18,149

(July 11, 2022)

Webster Szanyi, LLP, attorneys for respondent, Marnie E. Smith, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from actions of the Board of Education of the Evans-Brant Central School District (“respondent”) in connection with the district’s 2021 school board election.  The appeal must be dismissed.

Petitioner was one of five candidates on the ballot running for two open board seats during respondent’s 2021 school board election.  Petitioner received 152 votes, whereas incumbents Kathleen Chiavetta and Jennifer Michalec received 507 votes and 394 votes respectively.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 16, 2021.

Petitioner complains of three aspects of the 2021 election: (1) while an initial email communication listed candidates’ names vertically, the final ballot listed them horizontally; (2) a campaign postcard for the incumbents was, at one point, located inside a polling area; and (3) Ms. Chiavetta improperly gave away free food in connection with a fundraiser held at the high school, which also served as the polling site.  Petitioner seeks removal of the board of education “and certain other school officers” for the conduct described above, annulment of the election results, a new election, damages, and admonishment of the school district.

Respondent contends that the appeal must be dismissed for failure to join necessary parties.  Respondent further contends that petitioner’s application for removal must be denied for lack of the required notice.  Respondent also argues that the Commissioner lacks authority to grant money damages, and that petitioner has otherwise failed to meet her burden of proof.  

The appeal must be dismissed, in part, 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).

Here, petitioner challenges Ms. Michalec’s and Ms. Chiavetta’s right to hold office.  However, she did not serve them with copies of the petition.  Because the right to hold office of these two members is disputed, petitioner’s failure to join them as respondents requires dismissal (8 NYCRR 275.8 [d];  see Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301).

Additionally, to the extent that petitioner seeks removal of school officers, section 277.1 (b) of the Commissioner’s regulations dictates the specific notice required for removal applications pursuant to Education Law § 306, which is distinct from the notice required under section 275.11 (a) for appeals pursuant to Education Law § 310.  The notice of petition secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations therein (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of Hertel, 49 id. 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832; Appeal of Catalan, 47 id. 176, Decision No. 15,660).  A removal application that does not include the specific notice required by 8 NYCRR 277.1 (b), as here, is fatally defective and must be denied (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of White and Carmand, 56 id., Decision No. 16,994; Appeal of Kelly, 45 id. 38, Decision No. 15,253).

Additionally, petitioner’s requests for money damages must be dismissed for lack of jurisdiction.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law § 310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).

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).

Petitioner has failed to allege, much less prove, that errors in the conduct of the election were so pervasive as to vitiate the fundamental fairness of the election.  First, with respect to ballot placement, the district clerk explains that she conducted a drawing to determine ballot placement and conveyed the results to candidates by email thereafter.  She made no representation as to whether the names would appear vertically or horizontally on the printed ballots.  In any event, petitioner does not explain how the orientation of the ballots affected the electoral process.[1]

With regard to the postcard, the district clerk explains that, after petitioner informed her of its presence, she observed a campaign postcard for Ms. Michalec and Ms. Chiavetta located on a table between two voting machines.  The district clerk apologized and threw the postcard in the trash.  She further explains that the postcard could not have been on the table for more than five or ten minutes, as she (along with other election officials and district administrators) visited the tables every five or ten minutes to collect “privacy folders” used by voters.  Thus, even assuming that one or more voters viewed the campaign postcard, its presence at a polling site was unforeseeable and quickly remedied by respondent.

Finally, petitioner has not proven that Chiavetta’s Catering Service, Inc. (“Chiavetta’s”) offered free chicken dinners to voters who cast their vote for Ms. Chiavetta.  While petitioner claims that a high school student informed her of this arrangement, she does not identify the student or submit any evidence in support thereof.  Indeed, the record reflects that the chicken dinners cost $12 apiece and were offered as a fundraiser to support respondent’s music department.

However, I agree with petitioner that the fundraiser constituted improper electioneering.  Ms. Chiavetta indicates in an affidavit that she is the Chief Operating Officer (“COO”) and Director of Business Development for Chiavetta’s.  She further asserts that Chiavetta’s chicken dinner fundraisers “are [offered] by many school districts in the area and … often scheduled on the same day as the school districts’ annual budget vote and elections.”

I find that voters could have reasonably connected Ms. Chiavetta with the company that bears her name—and where she is employed as COO.  As such, Ms. Chiavetta was able to take advantage of the goodwill associated with the fundraiser in ways that the other candidates were not (compare Appeal of Santicola, 36 Ed Dept Rep 416, Decision No. 13,765 [“holding … [a] barbecue at the same time as [an] election, … does not constitute electioneering in and of itself ….”]).  Thus, the hosting of the Chiavetta’s fundraiser in close temporal and physical proximity to the polling site constituted improper electioneering under the circumstances (compare Appeal of Herloski, 57 Ed Dept Rep, Decision No. 17,361).

While I admonish respondent to exercise greater care in the future, no relief is warranted in this instance.  Petitioner has not demonstrated that the outcome of the vote was affected by the electioneering or that the vote involved an irregularity that vitiated the fundamental fairness of the election.  Thus, the appeal must be dismissed.

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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