Appeal of JENNIFER STRAUSS from action of the Board of Education of the Wantagh Union Free School District regarding a school board election and budget vote and application for removal.

Decision No. 18,286

(May 31, 2023)

Guercio & Guercio, attorneys for respondent, Reesa F. Miles, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Wantagh Union Free School District (“respondent”) regarding the district's May 17, 2022 school board election and budget vote; she also seeks the removal of a board member from office in connection therewith.  The appeal must be dismissed and the application for removal must be denied.

On May 17, 2022, respondent held its annual budget vote and election. Petitioner was one of five candidates on the ballot running for the school board and was not elected.  This appeal and application for removal ensued.

Petitioner raises several claims of error in connection with the election and budget vote, arguing that such errors “resulted in an election that was neither fair nor impartial.”  For relief, petitioner seeks a declaration that the district submit to the public the “incorrect” ballot for the board election and budget vote and provide an explanation for why the sample ballot was not used, as well as the name of the person who designed the ballot that was used and who authorized its use.  Petitioner also seeks the removal of trustee Anthony Greco (“Greco”).

Respondents seek dismissal of the petition for improper service, failure to join necessary parties, and as untimely.  Additionally, respondent argues that petitioner’s claims are declaratory in nature or otherwise outside the jurisdiction of an Education Law § 310 appeal.  On the merits, respondent seeks dismissal of the petition for failure to state a claim upon which relief may be granted, arguing that petitioner has not met her burden of proof.

First, I must address a procedural matter. 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).  I decline to accept petitioner’s August 9, 2022 application to submit additional materials, which seeks to add new claims and introduce new exhibits in support thereof.

Turning to the merits, 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 asserts that the district made multiple errors in connection with the May 17, 2022 election, but she has failed to meet her burden of proving that any of these alleged errors affected the outcome of the election, were so pervasive that they vitiated the electoral process, or that they demonstrated 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).  For example, petitioner characterizes the district’s use of a ballot on election day that was different in format[1] than the sample ballot it published on its website as the “capstone to numerous examples of a dereliction of duties.”  However, petitioner offers insufficient proof that this affected the outcome of the election; she merely asserts that one resident informed her she had made an error in casting her vote intended for petitioner due to confusion about the ballot’s format.  Petitioner has otherwise failed to offer any other evidence, such as affidavits or signed statements from district voters, to support her claim.  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).  Thus, petitioner has failed to meet her burden of proving that respondent committed election irregularities that affected the results of the election or was otherwise negligent in its oversight and execution of the May 17, 2022 school board election and budget vote (Appeal of Eckles, 62 Ed Dept Rep, Decision No. 18,149).

Similarly, petitioner has not alleged sufficient facts to support removal of trustee Greco.  The Commissioner of Education may remove a school officer or member of a board of education from office when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law (Education Law § 306 [1]; see Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729).  To be considered willful, the action of a board member or school officer must have been intentional and committed with a wrongful purpose (see Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Nett and Raby, 45 id. 259, Decision No. 15,315).  Even accepting petitioner’s allegations as true, she does not allege that trustee Greco acted with a wrongful purpose.

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

THE APPEAL IS DISMISSED.

THE APPLICATION IS DENIED.

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