In the appeal to the Commissioner of Education submitted pursuant to pursuant to Education Law §310 Petitioner sought a review of a school district's [BOE] election procedures, the votes cast during the 2023 election (personally or through an independent “auditor”) for the three candidates seeking election to the Board; “open[ing] all 2023 BOE seats for reelection in 2024”; and orders directing the BOE to review its election procedures. In addition, Petitioner sought the removal of the district clerk, two board members, and reimbursement for her costs in bringing this proceeding.
BOE contended that Petitioner failed to establish any wrongdoing in connection with the election. Further, even assuming that the alleged irregularities occurred, BOE contended "they did not affect the outcome of the election or impugn its fairness."*
The Commissioner ruled that Petitioner's appeal must be dismissed and the application denied.
The Commissioner noted that an appeal to the Commissioner is appellate in nature and does not provide for investigations and that the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 , citing Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244 and Application of Kolbmann, 48 id. 370, Decision No. 15,888). Accordingly, the Commissioner dismissed Petitioner’s requests for an investigation, the appointment of an “auditor,” and financial reimbursement.
As to the merits of Petitioner's efforts to invalidate the results of a school district election, the Commissioner explained that a petitioner seeking the invalidation of a school board election 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.
Noting earlier Decisions of the Commissioner of Education, Commissioner of Education Rosa said "[implicit in those 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, citing in particular Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905; and Appeal of Thomas, 47 id. 442, Decision No. 15,748.
Initially, many of the issues of which Petitioner complains are explained by BOE’s utilization of poll registration in lieu of personal registration, noting that in the event "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”.
Significantly the Commissioner indicated that Petitioner "fails to even allege sufficient voter irregularities to affect the outcome of the election" and sets out in her decision the facts supporting BOE explanation of the numerical discrepancies about which [Petitioner] complains such "five voters 'signed the poll book but their barcode[s] [were] not scanned" and due to an oversight, certain voter’s information was not “manually entered into the election software program voter list.”
The Commissioner also addressed the procedure to be followed upon a challenge to a voter’s qualifications set out in Education Law §2019, observing that the record reflects that the BOE complied with this statutory procedure.
Holding that Petitioner has not met her burden of establishing that any election irregularities occurred, "let alone those significant enough to warrant overturning the election", the Commissioner concluded that there was no basis to remove the school officers identified in the caption of the Petitioner's appeal. Further, opined the Commissioner, "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", citing Education Law §306.
Addressing a final issue, the Commissioner noted that the individual named respondents had requested certification that they acted in good faith pursuant to Education Law §3811(1), which section authorizes 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)."
Pointing out that the Commissioner will issue such a certification unless the record establishes that the requesting respondent acted in bad faith, the Commissioner certified that "for the purpose of Education Law §3811(1) that the individual respondents are entitled to the requested certification" with respect to the instant proceeding.
* Two candidates in the election received 598 and 566 votes respectively while the third candidate, Petitioner, received 351 votes. A request to preserve the ballots in the 2023 election as interim relief was determined to be unnecessary.
Click HERE to access the Commissioner's decision posted on the Internet.