September 30, 2021

Procedural errors or omissions preclude consideration of an Education Law §310 appeal to the Commissioner of Education on its merits

Petitioners in the appeal to the Commissioner of Education alleged that the school district [District] “systematically interfered with” the election to the school board by “providing absentee voter poll data before the polls closed"; using District resources “to advocate a ‘yes’ vote on the [s]chool [b]udget”; an employee organization "obtained voter contact information and used it 'to send an advocacy postcard to arrive simultaneously with [e]lection [b]allots,'” and that the superintendent “targeted email communications about the [b]udget and [t]rustee [v]ote to parents of children in the school district and not to the whole electorate.”

Petitioners asked the Commissioner issue an order overturning the results of the election and vote. Citing 8 NYCRR 275.10, the Commissioner said that in an Education Law §310 appeal to the Commissioner:

a. The 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; and

b. Mere speculation as to the existence of irregularities or the effect of irregularities is an insufficient basis on which to annul election results.

The Commissioner then addressed a number of procedural issues raised by respondents in this appeal: 

1. With respect to Petitioners' challenge to alleged actions the employee organization in the voting process, the Commissioner opined that it is well settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education in appeals submitted pursuant to §310 of the Education Law and thus she lack jurisdiction over Petitioners' claims with respect to the employee organization's alleged participation in the election.

2. With respect to Petitioners' claims involving the Freedom of Information Law [FOIL],  the Commissioner held that such claims must dismissed for lack of jurisdiction, explaining that §89 of the Public Officers Law "vests exclusive jurisdiction over alleged FOIL violations in the Supreme Court of the State of New York."

3. The Commissioner then ruled that Petitioners’ remaining claims must be dismissed for failure to join "a necessary party," indicating that an individual or an 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. As an example, the Commissioner noted that in an appeal involving 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.”

Accordingly, the Commissioner dismissed Petitioners' §310 appeal for lack of jurisdiction. 

The Commissioner then noted that "even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits," explaining that in order 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.

On this record, said the Commissioner, Petitioners have failed to carry their burden of proving that any irregularities occurred and affected the outcome of the election.

In the words of the Commissioner: "Although Petitioners object to various alleged actions of the district respondents, [Petitioners] have not provided any evidence, such as an affidavit from a district voter, to establish that such actions impacted the results of the election in any way."

Thus, opined the Commissioner, even if the appeal were not dismissed on procedural grounds, it would have been dismissed on the merits. 

Click HERE to access the full text of the Commissioner's decision.

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