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.