Appeal of CRISTINA ARROYO RODRIGUEZ and RACHEL FIGURASMITH from action of the Board of Education of the Valley Stream 24 Union Free School District regarding a school district election.

Decision No. 18,372

(January 10, 2024)

Guercio & Guercio, LLP, attorneys for respondent, Christopher W. Shishko and Jared Sanders, Esqs., of counsel

ROSA., Commissioner.--Petitioners appeal from certain actions of the Valley Stream 24 Union Free School District (“board” or “respondent”) regarding the conduct of the district’s May 2023 election.  The appeal must be dismissed. 

Petitioners were unsuccessful candidates for two open trustee seats in respondent’s May 2023 election.  They raise numerous allegations relating to respondent’s purported conduct leading up to and during the May 16, 2023 election.  For example, petitioners contend that respondent’s website improperly directed potential voters to the wrong polling site; printed petitioner Rodriguez’s name as “Cristina Arroyo” instead of “Cristina Arroyo Rodriguez” on the ballot; and that votes cast for petitioner Figurasmith at one polling site were not included in the final tally.  For relief, petitioners request that I order respondent to correct the final vote counts and publicly admit that it engaged in wrongdoing.  Petitioners also seek “[o]versight of school board election procedures” by an independent organization for the next three years and reimbursement for petitioner Rodriguez’s mail and text campaign expenditures.  Petitioners do not request a new election.

Respondent argues that the appeal must be dismissed for failure to join the successful candidates in the election.  On the merits, respondent denies many of petitioners’ arguments and contends that any errors had no effect on the outcome of the election.

The appeal 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).

Petitioners seek relief regarding the May 16, 2023 election, including a recount of all votes, which could adversely affect the candidates who were elected to the board, Cynthia Nunez and Armando Hernandez.  Neither Ms. Nunez nor Mr. Hernandez were named in the caption of this appeal or personally served with a copy of the petition.  As such, the appeal must be dismissed (Appeal of Puskuldjian, 61 Ed Dept Rep, Decision No. 18,048; Appeal of Bonelli, 59 id., Decision 17,795; Appeal of Pasquini, 53 id., Decision No. 16,500).

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).

Petitioners have not demonstrated that any irregularities occurred that affected the outcome of the election.  Respondent admits that, following certification of the vote count, it discovered that 42 votes for petitioner Figurasmith cast at the Brooklyn Avenue School polling site had not been counted.  However, these votes did not affect the outcome of the election.  Even when these 42 votes are added to the total, petitioner Figurasmith still lost by over 200 votes (i.e., 176 to 391).[1]  Petitioners’ remaining contentions are unsupported by any evidence, such as affidavits from district voters, to establish that such actions impacted the outcome of the election.  Accordingly, even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.[2]

I nevertheless admonish respondent to ensure that candidates’ names are accurately printed on the ballot.  Petitioner Rodriguez asserts that she “wrote in all official documents, as well as mailers and bulk texting, ... ‘Cristina Arroyo Rodriguez[’; ]however, my name on the ballot was printed only as ‘Cristina Arroyo.’”  This assertion is supported by multiple documents submitted by petitioner.  While respondent denies this contention, it offers no evidence to explain the discrepancy.

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

THE APPEAL IS DISMISSED.

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