Appeal of DON MARKHAM from action of the Board of Education of the East Irondequoit Central School District regarding a school district election.

Decision No. 18,266

(April 18, 2023)

Ferrara Fiorenza PC, attorneys for respondent, Joseph G. Shields, Esq., and Thomas F. Barrett, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the East Irondequoit Central School District (“respondent”) regarding the conduct of the district’s school board election and budget vote.  The appeal must be dismissed.

On May 17, 2022, respondent held its annual budget vote and election. Petitioner was an unsuccessful candidate for one of three open school board seats.  This appeal ensued.

Petitioner raises several complaints regarding the 2022 election.  Primarily, he alleges that respondent unfairly promoted incumbent candidates.  He also argues, among other things, that respondent impeded him from observing the vote count.  For relief, petitioner requests a series of changes to respondent’s election procedure, a ban on school events near voting sites on election day, and an order that annual audits be conducted to confirm the town’s compliance with budget laws.[1]

Respondent seeks dismissal of the appeal for failure to state a claim upon which relief can be granted.  Respondent otherwise asserts that it complied with the Education Law and acted in good faith.

First, I must address a procedural issue.  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).  Following service of the petition, petitioner submitted an additional “verified reply to memorandum of law,” along with further evidence.  Petitioner did not seek permission to file this additional pleading and exhibits nor explain why the accompanying evidence could not have been submitted with his prior pleadings.  Accordingly, I decline to accept the additional document and evidence submitted by petitioner.

Turning to the merits, a board of education may use public resources to present objective, factual information to the voters concerning a vote or election (Matter of Phillips v Maurer, 67 NY2d 672, 673-674 [1986]; see Education Law §§ 1716, 2022; Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Caswell, 48 id. 472, Decision No. 15,920).  However, while a board of education may disseminate information “‘reasonably necessary’ to educate the public,” it may not use district resources to distribute materials “designed to exhort the electorate to cast their ballots in support of a particular position advocated by the board” (Matter of Phillips, 67 NY2d at 674 [citing Education Law § 1709 (33)]; Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Caswell, 48 id. 472, Decision No. 15,920).

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 argues that the 2022 school board election was “fixed” and “favored the incumbents each step of the election.”  Petitioner has provided no evidence that respondent violated the Education Law, that any alleged irregularities affected the outcome of the election, that the electoral process was informal to the point of laxity, or that the district misused its resources to promote the incumbents for the open board seats.  Instead, he relies upon innuendo and unsupported statements.  For example, regarding his claim that a “meet the candidates’ night” unfairly supported incumbent candidates, petitioner argues that the link to a video recording was difficult to locate on the district’s website.  He further questions the validity of voter participation at this event, asking:  “Extra questions were asked by the audience in secret – could have been board members (biased)?”  Such allegations do not demonstrate proof of wrongdoing.  Thus, on this record, I find that petitioner failed to meet his burden to demonstrate entitlement to any of the relief requested (see Appeal of Kavanaugh, et al., 62 Ed Dept Rep, Decision No. 18,258; Appeal of Palmore, 62 id., Decision No. 18,221; Appeal of Watson, et al., 56 id., Decision No. 17,082).[2]

To the extent they are not specifically addressed herein, petitioner’s remaining arguments are without merit.

THE APPEAL IS DISMISSED.

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