Appeal of LINDA CLARK from action of the Board of Education of the Lake George Central School District regarding a school district election and application for the removal of Jeanine Bieber and Rosemarie Earl as board members and Sarah Barton as district clerk.

Decision No. 18,373

(January 16, 2024)

Girvin & Ferlazzo, P.C. attorneys for respondent, Kristine A. Lanchantin, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals purported actions of the Board of Education of the Lake George Central School District (“respondent”) regarding the district’s May 2023 school board election.  She also seeks the removal of Jeanine Bieber and Rosemarie Earl as trustees and Sarah Barton as district clerk (the “individual respondents”).  The appeal must be dismissed and the application denied.

Petitioner, Jeanine Bieber, and Rosemarie Earl ran for two open trustee positions in the district’s May 16, 2023 election.  Ms. Earl and Ms. Bieber received 598 and 566 votes respectively, while petitioner received 351.  This appeal ensued.  A request to preserve the ballots in the 2023 election as interim relief was determined to be unnecessary.[1]

Petitioner generally alleges that several individuals, including seasonal owners and non-residents, improperly voted in the May 2023 election.  She argues that there is a six-person discrepancy between the number of individuals contained on the district’s voter list (891), the machine tabulator slips (851), and the absentee ballots (46).  Petitioner further asserts, among other claims, that the candidates should have received notice of “unregistered voter applications and affidavits” as required by Education Law § 2019 and that voters were “disenfranchised” due a change in the time that polls were open.  Petitioner seeks a review of respondent’s election procedures as well as the votes cast during the 2023 election (personally or through an independent “auditor”); “open[ing] all 2023 BOE seats for reelection in 2024”; and orders directing respondent to review its election procedures.  Petitioner further seeks removal of the district clerk, two board members, and reimbursement for her costs in bringing this proceeding.

Respondent alleges that petitioner has failed to establish any wrongdoing in connection with the election.  Moreover, even assuming that the alleged irregularities occurred, respondent contends that they did not affect the outcome of the election or impugn its fairness.

As in her prior appeal concerning respondent’s 2022 election,[2] some of petitioner’s requested relief exceeds my authority.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).  Further, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law § 310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).  Therefore, petitioner’s requests for an investigation, the appointment of an “auditor,” and financial reimbursement must be dismissed.

Turning to the merits, to invalidate the results of a school district election, a 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).

Initially, many of the issues of which petitioner complains are explained by respondent’s utilization of poll registration in lieu of personal registration.  “If a Board of Education of a district does not adopt personal registration ... any qualified voter[s] of the district may present [themselves] to the meeting and, after [their] name[s] ha[ve] been placed on the poll list, ... cast [a] ballot” (Matter of Lush v Commissioner of Educ. of State of N.Y., 16 Misc 2d 137, 139 [Sup Ct, Albany County 1957], affd, 8 AD2d 644 [3d Dept 1959]; see also Appeal of Dunn, 59 Ed Dept Rep, Decision No. 17,809).

Additionally, petitioner fails to even allege sufficient voter irregularities to affect the outcome of the election.  Moreover, respondent has adequately explained the numerical discrepancies about which petitioner complains.  With respect to the six-person discrepancy between names on the voter list and the voting machines/absentee ballots, respondent indicates that five voters “signed the poll book but their barcode[s] [were] not scanned” into a database while a sixth voter “provided information establishing residency” but, due to an oversight, the voter’s information was not “manually entered into the election software program voter list.”  With respect to absentee ballots, respondent explains that the numerical discrepancy between the number of absentee ballot applications and absentee ballots was attributable to the fact that, as required by law, permanently disabled voters automatically received absentee ballots without application therefor.  Petitioner has presented no evidence to the contrary.

Except for one individual, petitioner’s complaint about alleged votes cast by seasonal owners and non-residents is foreclosed by her failure to challenge their qualifications prior to the election (Education Law § 2019; Hurd v Nyquist, 72 Misc 2d 213, 215 [Sup Ct, Albany County 1972]; Matter of Crowley, et al., 39 Ed Dept Rep 665, Decision No. 14,345; Matter of Regent, 12 id. 108, Decision No. 8,556; Matter of Kavanaugh, 5 id. 19, Decision No. 7,539).[3]  With respect to the individual whose vote was challenged, petitioner asserts that this individual, her neighbor, spends the night in his claimed residence on “extremely rare occasions.”  She submits a transcript from a zoning board of appeals meeting concerning a planned addition to the neighbor’s house wherein the neighbor indicated that the house is not habitable during the winter.  This is further substantiated by information from the Town of Queensbury Assessor’s Office, which indicates that the home, built in 1904, lacks central heat and uses wood as its heating source.  Petitioner also submits evidence that, in April and May 2023 (i.e., the months leading to the election), nighttime temperatures in and around Lake George were as low as the 20s and 30s.

This evidence does not require annulment of the neighbor’s vote.  Education Law § 2019 outlines the procedure to be followed upon a challenge to a voter’s qualifications.  The chairperson presiding over the election is required to make the voter execute a declaration concerning her or his eligibility to vote.  Once made, the voter “shall be permitted to vote on all questions proposed at [the] meeting or election.”  If the voter declines to make the declaration, however, the “vote shall be rejected” (Education Law § 2019).   The intent of this procedure is so that “the matter can be settled right then and there, instead of dragging the district into protracted litigation” (Matter of Kavanaugh, 5 Ed Dept Rep 19, 26, Decision No. 7,539).  The record reflects that respondent complied with this statutory procedure.  In response to a challenge to his qualifications, the neighbor “confirmed [his residency] by a valid NYS issued driver’s license.”  Moreover, respondent indicates that it required the neighbor to vote by “affidavit” (see Education Law § 2019).[4]  As such, petitioner’s claim is without merit.[5]

Thus, petitioner has not met her burden of establishing that any election irregularities occurred, let alone those significant enough to warrant overturning the election (Appeal of the Board of Education of the Massapequa Union Free School District, 59 Ed Dept Rep, Decision No. 17,747).  Consequently, there is no basis to remove the school officers identified in the caption of the petition.  A school officer may only be removed based upon a willful violation or neglect of duty under the Education Law or willful disobedience a decision, order, rule, or regulation of the Board of Regents or the Commissioner (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). 

Finally, the individual respondents request certification that they acted in good faith pursuant to Education Law § 3811 (1).  Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in section 3811 (1).  The Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594).  I hereby certify for the purpose of Education Law § 3811 (1) that the individual respondents are entitled to the requested certification.

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

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