Appeal of HELISSE PALMORE from action of the Board of Education of the Wyandanch Union Free School District regarding a school district election.

Decision No. 18,221

(January 10, 2023)

The Scher Law Firm, LLP, attorneys for petitioner, Austin Graff, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent, Lisa L. Hutchinson, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Wyandanch Union Free School District (“respondent” or “board”) in connection with the district’s May 2021 school board election.  Petitioner joins James Crawford, Charles Reed, Shirley Baker, Robert Johnson III, Gerren Nixon, Ronald Fenwick, Nancy Holliday, and Samantha Lawson, candidates in the election (“the candidates”), as well as district clerk Christian Code.  The appeal must be dismissed. 

On May 18, 2021, the district held its annual election and budget vote at its high school.  The candidates and petitioner ran for three open board seats; petitioner and respondent Reed ran for the same seat.[1]  Respondent Reed prevailed, receiving 212 votes to petitioner’s 182.[2]  This appeal ensued.  Petitioner’s request for interim relief was denied on June 28, 2021. 

Petitioner alleges that respondent erred by:  (1) failing to post or provide a list of persons to whom absentee ballots were issued; (2) improperly maintaining or collecting absentee ballots on election day; and (3) failing, at the time the ballots were canvassed, to compare the signatures on absentee ballots to the signatures on record with Suffolk County Board of Elections.  Petitioner requests that the election be annulled and a new election be ordered. 

Respondent argues that the petition must be dismissed for failure to join and timely serve Mr. Reed, a necessary party.  Respondent also argues that petitioner failed to meet her burden to invalidate the results of the election.

I must first address the procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Next, respondent maintains that the petition must be dismissed for failure to join respondent Reed as a necessary party and for failure to timely serve him with the petition.  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).

I decline to dismiss the appeal on this basis.  It is undisputed by the parties that, after some initial confusion as to his address, a process server served Mr. Reed with the petition on June 23, 2021.  Additionally, the petition—and other pleadings and papers—use “Charles,” although respondent’s legal name is “Charlie.”  Despite this, Mr. Reed received an opportunity to respond to the petition and there is no evidence that he was prejudiced by the above circumstances.  Therefore, I decline to dismiss the appeal on this basis (see Appeal of M.H., 43 Ed Dept Rep 210, Decision No. 14,973; Appeal of Savastano, 32 id. 326, Decision No. 12,843).

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).

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 has failed to demonstrate that any irregularities affected the outcome of the election or that the electoral process was informal to the point of laxity.  First, petitioner claims that respondent failed to properly maintain a list of voters who were issued absentee ballots, and that the absence of this list prevented her from challenging the qualifications of persons who received absentee ballots.  Education Law § 2018-a (6) states that “[t]he board of registration shall make a list of all persons to whom absentee voter’s [sic] ballots shall have been issued and file such list in the office of the clerk[,] where it shall be available for public inspection during regular office hours until the day of the election.” 

Although petitioner asserts that the list was not “posted” between May 13, 2021 and May 18, 2021, respondent’s obligation was to maintain the list and make it available upon request—which it did.  Specifically, respondent’s district clerk avers that the list of persons who received absentee ballots was available for public inspection in the district clerk’s office from May 13, 2021 through May 18, 2021.[3]  Additionally, the record reflects that respondent publicized the availability of the absentee ballot list in a May 7, 2021 board candidate’s digest as well as two local newspapers.  Accordingly, petitioner has failed to meet her burden of proof on this claim (see Appeal of Watson, et al., 56 Ed Dept Rep, Decision No. 17,082).

Second, petitioner has failed to demonstrate that absentee ballots were improperly handled or delivered on election day.  Specifically, petitioner asserts that Mr. Reed improperly arrived at the polling site and dropped off four absentee ballots on the day of election.  Petitioner also asserts that Ms. Holliday, who ran with Mr. Reed as a “team,” brought several large manilla envelopes to the polling place throughout the day.  Petitioners speculate that these envelopes contained absentee ballots—and that the delivery of these ballots “may have intimidated” the district clerk “not to perform the due diligence required … to verify that the absentee ballots were valid ….”  Petitioner submits affidavits from three individuals who pose similar claims.  Mr. Reed admits that he delivered two absentee ballots to the polling site and denies running as a “team” with Ms. Holliday.

Petitioner has failed to establish that Mr. Reed or respondent engaged in any wrongdoing.  Petitioner submits no evidence that Mr. Reed or the district clerk engaged in wrongdoing; her allegations are qualified with statements that their actions “may have” or “assuredly” did so.  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).  With specific respect to Mr. Reed’s hand-delivery of sealed absentee ballots to the district clerk at the polling place, the Commissioner has previously stated that “nothing in the law … prohibits such conduct” (see Appeal of Watson, et al., 56 Ed Dept Rep, Decision No. 17,082; Appeal of Touré, et al., 54 id., Decision No. 16,660).  Additionally, the district clerk asserts that each absentee ballot was inspected to ensure that it was sealed; petitioner does not allege otherwise.  As a result, this claim is also dismissed. 

Finally, petitioner alleges that the district clerk and election inspectors failed to compare the signatures on absentee ballots to the signatures on record with the Suffolk County Board of Elections.  Education Law § 2018-a (10) states:

[i]f, at the school district election, any absentee voters’ envelopes shall have been received at the polling place, the inspectors of election immediately after the closing of the polls shall examine [the envelopes], and shall compare the signature, if any, on each envelope with the signature, if any, on the register, of the person of the same name who registered from the same address.

The following subsection states that any qualified voter may object to an absentee ballot on grounds that include lack of qualified voter status and, in certain situations, that the voter was physically able to appear at the polling site (Education Law § 2018-a [11]). 

Respondents admit that the district clerk and election inspectors did not compare signatures on the absentee ballots envelopes with signature exemplars maintained by the Suffolk County Board of Elections or “signature [exemplars] from the absentee ballot applications submitted by the voters.”  Indeed, one of the election inspectors specifically indicates that she did not check to see if the absentee ballots came from voters who had voted in person.

 Nevertheless, petitioner has failed to demonstrate that this technical violation affected the outcome of the election.  The district clerk affirms that each absentee ballot was inspected by an election inspector in public view, checked for a signature, and compared “against the voter registration list.”  Any envelopes that were damaged, defaced, or missing a signature were set aside.  The district clerk also affirms that “[a]t no point during the ballot canvassing did anyone present in the auditorium, including the candidates or any election inspector, challenge or object to the canvassing.”  Petitioner has offered no proof that the tallied absentee ballots were tampered with or otherwise miscounted.  Petitioner has also failed to submit any evidence that the alleged misconduct affected the outcome of the election. 

As such, I decline to set aside the results of the election based upon respondent’s noncompliance with Education Law § 2018-a (10) (see generally Appeal of Fraser-McBride, et al., 36 Ed Dept Rep 488, Decision No. 13,783; Appeal of Brower, 32 id. 86, Decision No. 12,767; compare Appeal of Touré, et al., 54 id., Decision No. 16,660 [“it cannot be determined on this record how many absentee ballot applications were received, how many absentee ballots were issued, and whether such issuances were in all cases valid....  Nor can it be determined whether all of the absentee ballots counted for [two candidates] were validly cast”]).  I admonish respondent, however, to comply with Education Law § 2018-a (10) going forward.

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

THE APPEAL IS DISMISSED.

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