Appeal of the BOARD OF EDUCATION OF THE ONTEORA CENTRAL SCHOOL DISTRICT regarding an election.

Decision No. 18,171

(August 3, 2022)

Thomas, Drohan, Waxman, Petigrow, & Mayle, LLP, attorneys for petitioner, Allison E. Smith, Esq., of counsel

ROSA., Commissioner.--Petitioner, the Board of Education of the Onteora Central School District (“petitioner” or the “board”), seeks an order pursuant to Education Law § 2034 (6) for a recount of the ballots in its 2022 school district election.  The appeal must be dismissed.

On May 17, 2022, the board held its annual election and budget vote.  The ballot included two propositions and an election to fill three open seats on the board.  Four candidates ran for the three open seats: Leon Savage, Kristy Taylor, Sarah Hemingway Lynch, and Meghann Reimondo.

After the polls closed, election officials realized that the voting machines recorded eight more votes than were recorded on the poll list.  Accordingly, eight ballots were removed at random from the ballot boxes for the two affected voting machines.  Thereafter, election officials certified the election results using the following counts:  

School Budget Proposition:

Yes:  592 votes

No:  170 votes

Capital Reserve Fund Proposition:

Yes:  646 votes

No:  112 votes

Board of Education:

Sarah Hemmingway Lynch:  583 votes

Meghann Reimondo:  527 votes

Leon Savage:  349 votes

Kristy Taylor:  345 votes

In certifying these numbers, election officials neglected to subtract the eight ballots that had been removed from the ballot boxes.

On May 19, 2022, the district canvassed the affidavit ballots, bringing the tally to 358 votes for Leon Savage and 351 votes for Kristy Taylor.  This appeal ensued.

Petitioner seeks an order pursuant to Education Law §§ 2034 and 2037 directing an immediate recanvass and recount of the ballots because the votes from the eight extra ballots should have been subtracted from the certified counts.  Petitioner further asserts that the result could change the outcome of the election.

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).

Education Law § 2034 (6) (a) authorizes the Commissioner of Education to order a recount of the ballots in school district elections (Matter of Carville v Allen, 24 Misc 2d 812, mod and affd 13 AD2d 866).  However, a recount will not be ordered absent 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).

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).

Here, while petitioner has submitted proof that an irregularity occurred in the tabulation of votes, this proof is insufficient to meet its burden on appeal.  Petitioner has shown that there were potential errors in tabulating eight votes, that one seat in the election was won by a margin of seven votes, and that, theoretically, this could have affected the outcome.  It is well settled that mere speculation as to the effect of alleged irregularities provides an insufficient basis on which to annul election results (Appeal of the Board of Education of the Massapequa Union Free School District, 59 Ed Dept Rep, Decision No. 17,747).[1] 

Petitioner has also failed to prove that any irregularities were so pervasive that they vitiated the electoral process or demonstrated informality to the point of laxity in adherence to the Education Law (see Appeal of Goethe and Bennett, 61 Ed Dept Rep, Decision No. 18,108; compare Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905).  The inaccurate vote count resulted from mere negligence, which does not satisfy this demanding standard.  Thus, petitioner’s claims must be dismissed.

THE APPEAL IS DISMISSED.

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