Appeal of NANCY HOLLIDAY from action of the Board of Trustees of the Wyandanch Public Library regarding an election.

Decision No. 18,264

(April 12, 2023)

Cooper, Sapir & Cohen, P.C, attorneys for respondent, David M. Cohen, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Trustees of the Wyandanch Public Library (“respondent”) regarding respondent’s budget vote and trustee election held on April 5, 2022.  The appeal must be dismissed.

On April 5, 2022, respondent held its budget vote and an election for one seat on its board.  As a result of the vote, petitioner lost her seat on the board to a challenger, Kisha M. Carter (“challenger”), in an 112-105 vote.[1]  This appeal ensued.  Petitioner’s request for interim relief was denied on May 25, 2022.

Petitioner contends that alleged irregularities and voter fraud surrounding the election were so pervasive that the election should be overturned.  Petitioner alleges that the challenger does not reside within the district, that voters who received absentee ballots additionally voted in person, that prospective voters were turned away at the ballots, that non-district residents voted in the election, and that a poll watcher engaged in improper electioneering.  Petitioner seeks an investigation and an order for a new election. 

Respondent contends that petitioner failed to establish that any alleged irregularities or voter fraud either occurred or 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.

To invalidate the results of a school district or library 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 on op below 26 NY2d 709 [1970]; Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of the Bd. of Educ. of the Minerva Cent. Sch. Dist., 54 id., Decision No. 16,628; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905; Appeal of Levine, 24 id. 172, Decision No. 11,356, art 78 dismissed Matter of 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).

Petitioner has failed to meet her burden of proof.  The record reflects that respondent’s election clerk conducted a thorough review of the election and generated a report summarizing his findings.  This report reflects that the election occurred largely without incident, and that any instances of concern were addressed by the clerk.  For example:

• Prospective voters who were not identified within the registry and who were registered to vote were allowed to vote in the election. 
• Prospective voters who were not registered to vote were not allowed to vote in the election; instead, they were informed that they should complete a voter registration form and mail it to the Suffolk County Board of Elections, thereby allowing them to vote in upcoming elections.[2] 
• The absentee ballots of voters who received such ballots but later elected to vote in person were neither accepted nor counted toward the results of the election.
• While the election clerk observed some poll watchers talking with voters, he did not witness any poll watchers instructing voters on who, or what, to vote for in the election.

Petitioner offers no evidence to contradict the report’s findings.  She merely states, in a conclusory manner, that irregularities existed and that voter fraud occurred.  Thus, she has failed to meet her burden of proof (see e.g. Appeal of Rogers and Warren, 61 Ed Dept Rep, Decision No. 18,119).

Similarly, petitioner’s unsworn letter alleging that the challenger does not reside within the district does not establish that the challenger did not reside within the district “at least one year prior to the election” (Education Law § 2102; compare Appeal of Roy, 31 Ed Dept Rep 497, Decision No. 12,713).[3]  As such, this claim must also be dismissed.

I have reviewed the parties’ remaining contentions and find them to be without merit. 

THE APPEAL IS DISMISSED.

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