Appeal of ELIZABETH DECKER from action of the Board of Education of the Red Creek Central School District regarding an election.

Decision No. 18,207

(October 25, 2022)

Harris Beach PLLC, attorneys for respondent, Anne McGinnis, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Red Creek Central School District (“respondent”) regarding the district’s 2022 annual budget vote and election.  The appeal must be dismissed.

On May 17, 2022, respondent held its annual budget vote and election.  Six candidates, including petitioner, were listed on the ballot for three open board seats.  The instructions on the ballot and the annual notice stated that voters could select “up to three candidates.”

Approximately five hours into the election, respondent learned that the instructions printed in three of the five voting booths erroneously informed voters to select “up to two candidates.”  Respondent immediately corrected the error and voting continued.  At the conclusion of the election, Stephanie Kaiser, Nancy Henner Dingman, and Jolean Bliss were elected to the board.  This appeal ensued.

Petitioner contends that irregularities surrounding the election were so pervasive that the election should be overturned.  In addition to the error detailed above, she alleges that respondent failed to secure a sufficient number of election inspectors and that the ballots were not counted before the votes were tallied in violation of Education Law § 2034.  Petitioner seeks an investigation and a recount.

Respondent argues that the petition must be dismissed, among other reasons, 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 failed to establish that any alleged irregularities 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.

First, I must address a procedural issue.  Petitioner seeks permission to file evidence that she claims was obtained from the district through a Freedom of Information Law request.  This evidence consists of video footage that allegedly supports petitioner’s version of the events described on the night of the election.  Additional affidavits, exhibits, and other supporting papers may be submitted only 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).  While the video footage has questionable relevance to petitioner’s claims, I have accepted it into the record.

The appeal, however, 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 commenced this appeal by serving a notice and petition on the superintendent, who is authorized to accept service on behalf of the board (8 NYCRR 275.8 [a]).  None of the successful candidates were named as respondents or served with a copy of the petition.  While petitioner later served each of the successful candidates on June 24, 2022, she neither sought nor received permission to do so.  “After an appeal [to the Commissioner] is commenced … no party shall be joined or be permitted to intervene, except by leave or direction of the Commissioner of Education” (8 NYCRR 275.1; see Appeal of Gilmore and Jordon-Thompson, 42 Ed Dept Rep 334, Decision No. 14,874; see also Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301).  Having failed to properly join the successful candidates, the appeal must be dismissed.

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).

It is undisputed that three of the five voting booths contained signs that erroneously instructed voters to vote for “up to two candidates.”  These signs were present for approximately five out of the nine hours the voting was conducted.  Notwithstanding this irregularity, respondent notes that the ballots themselves contained correct instructions and that it was the practice of each election inspector to notify voters that they could vote for three candidates.  Absent proof that this affected the outcome thereof,[1] I decline to order a new election (Appeal of Goethe and Bennett, 61 Ed Dept Rep 18,108).

Petitioner also alleges that there were an insufficient number of election inspectors and that the vote count conducted by the inspectors present was improper.  In central school districts, such as respondent, there must be “[a]t least two election inspectors ... for each ballot box or voting machine” (Education Law § 2025 [3] [b]).  The record indicates that there were only five inspectors present,[2] even though four ballot boxes were used.  However, petitioner offers no proof that the number of election inspectors present affected the outcome of the election.  Accordingly, petitioner has failed to prove that this deficiency constitutes a basis for overturning the results of the election (see Appeal of Uciechowski, 32 Ed Dept Rep 511, Decision No. 12,903).  I remind respondent of its obligation to appoint a sufficient number of election inspectors.

I have reviewed petitioner’s remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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