Challenges that may arise in the course of conducting a school board election and, or, conducting a vote on a budget proposition

In Decision of the Commissioner of Education No. 18,342, the text of which is set out below, the Commissioner addressed a number of issues that could arise in the course of a school board election or in the course of a vote on a budget proposition.

 

ROSA., Commissioner.--Petitioner appeals from action of the Board of Trustees of the Sherrill-Kenwood Free Library (“library”) and the Board of Education of the Vernon-Verona-Sherrill Central School District (“district”) regarding a vote on a library budget proposition held on June 1, 2022 (“Proposition 1”).  The appeal must be dismissed.

On June 1, 2022 the district held a vote on Proposition 1, which concerned an annual levy of $186,700 to support the library.[1]  Voting occurred at three polling places, located in Vernon, Verona and Sherrill, New York.  At the Sherrill voting site, poll workers offered voters a sticker containing the phrases “Your Vote Counts” and “Love Your Library” together with their ballots.  Proposition 1 passed by a vote of 351 to 296.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 1, 2022.

Petitioner claims that the “Love Your Library” stickers constituted improper electioneering.  Petitioner further alleges that there were no privacy curtains for voters to cast their vote at the polling site, in violation of Election Law § 8-312.  For relief, petitioner requests that I annul the results of the June 1, 2022 vote. 

The library denies that it engaged in electioneering or partisan advocacy.  The library further argues that Election Law § 8-312 does not apply to school district elections.  

The district denies that petitioner is entitled to any relief.[2] 

Initially, I must address two procedural matters.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed petitioner’s reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Petitioner also submits two additional affidavits with appendices describing “additional [ir]regularities in the conduct of the June 1, 2022 vote.”  Additional affidavits, exhibits, and other supporting papers may be submitted only with the prior permission of the Commissioner (8 NYCRR 276.5).  While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Petitioner submitted these additional affidavits approximately seven months after the reply and provides no explanation as to why I should accept them at this juncture (8 NYCRR 275.3[b]).  Moreover, this submission raises new claims not previously addressed in the petition.  Thus, I decline to accept these additional affidavits. 

Turning to 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).

A board of education may use public resources to present objective, factual information to the voters concerning a vote or election (Matter of Phillips v Maurer, 67 NY2d 672, 673-674 [1986]; see Education Law §§ 1716, 2022; Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Caswell, 48 id. 472, Decision No. 15,920).  However, while a board of education may disseminate information “‘reasonably necessary’ to educate the public,” it may not use district resources to distribute materials “designed to exhort the electorate to cast their ballots in support of a particular position advocated by the board” (Matter of Phillips, 67 NY2d at 674 [citing Education Law § 1709 (33)]; Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Caswell, 48 id. 472, Decision No. 15,920).

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).

In support of his argument, petitioner relies on affidavits from two district residents who voted at the Sherrill site.  Both residents state that they received a sticker reading “Your Vote Counts: Love Your Library” along with their ballots at the Sherrill polling site on June 1, 2022.  They maintain that receipt of this sticker could only be interpreted to mean that they should vote “yes” on Proposition 1.  Petitioner submits a copy of the sticker as evidence.  The sticker contains two separate graphics, one which states “Your Vote Counts” and a second that states “Love Your Library.”  The library asserts that these stickers “were intended for distribution after voting” and were generated in connection with the library’s annual “Spring for Books” event, which also occurred on June 1, 2022.  Despite these intentions, the district admits that “voters were given [the] sticker ... by a poll worker at the same time ... they were given their ballot.” 

Even assuming that the stickers constituted partisan statements or electioneering, petitioner has submitted no evidence that the stickers affected the votes of the affiants—or anyone else.  Thus, petitioner has failed to prove that the distribution of these stickers affected the outcome of the budget vote (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Crawford, et al., 47 id. 413, Decision No. 15,739; Appeal of Holliday, 42 id. 242, Decision No. 14,840). 

Petitioner further argues that the results of the budget vote should be annulled based on the district’s failure to provide privacy curtains at the Sherrill polling place, which he asserts is required by Election Law § 8-312 [1]).  “Except in limited circumstances not applicable here, the Election Law does not govern the conduct of school district elections” (Appeal of the Bd. of Educ. of the Hilton Cent. Sch. Dist., 56 Ed Dept Rep, Decision No. 17,091 [citing, among other authorities, Election Law § 1-102).  The applicable statute here, as the library contends, is Education Law § 2030 (2).  That statute requires that school districts “provide a voting booth, or booths for voters ... to enter ... for the purpose of marking their ballots.”  While the two affiants assert that “there was no privacy booth for [them] to vote in,” this does not compel any relief for the reasons described in Matter of Orzechowski (2 Ed Dept Rep 385, Decision No. 7,156).  There, as here, the Commissioner declined to overturn an election absent “some indication that the failure to provide [voting] booths ... affected the results” of the vote (id.).  This appeal is analogous in all relevant aspects to Matter of Orzechowski and I hereby adopt its reasoning.

To the extent they are not addressed herein, I find petitioner’s remaining arguments to be without merit.

THE APPEAL IS DISMISSED.

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[1] Proposition 1 specifically stated the following: “[s]hall the sum of $186,700 be raised by annual levy of a tax upon the taxable real property within the Vernon Verona Sherrill School District for the purposes of funding the Sherrill-Kenwood Free Library?”

[2] The district admits petitioner’s allegation that the “Love Your Library” sticker was “an obvious prompt for the voter to cast his or her vote in favor of the proposition” and that there were no privacy curtains provided to voters.  These admissions notwithstanding, petitioner is not entitled to any relief for the reasons outlined below. 

To access the decision of the Commissioner No. 18,342 posted on the Internet click HERE.

 

Termination pursuant to Civil Service Law §71 held not the exclusive procedure to separate an employee who is absent due to a work-related injury

Supreme Court denied Plaintiff's petition seeking to vacate Plaintiff's termination from her position with the New York City Department of Consumer and Worker Protection [DCWP] pursuant to Civil Service Law §75. The Appellate Division unanimously affirmed the Supreme Court's decision.

DCWP had filed disciplinary charges against Petitioner and terminated her for  "incompetence" after finding her guilty of "excessive absenteeism" following a work-related injury. 

The Appellate Division, citing Wysocki v Town of Southold, 204 AD3d 811 and other decisions, said that Plaintiff's dismissal was not arbitrary and capricious or affected by an error of law, observing that the "Petitioner was continuously absent from work for over 295 days and provided no indication as to when or whether she could return to work."

Noting that Petitioner did not allege that her disability "has not permanently incapacitated her from the performance of her civil service duties" held that her contention that DCWP erred by using Civil Service Law §75 instead of §71 to discharge her is unavailing. The court explained that "neither the statute itself nor the relevant case law mandates the use of Civil Service Law §71 as the exclusive procedure to separate an employee who is absent due to injury."

Click HERE to access the Appellate Division's decision posted on the Internet.

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Disability Leave for New York public sector personnel.

Click HERE for information and access to a free excerpt of the material presented in this e-book.

 

 

 

Municipal and School Audits released by New York State Comptroller Thomas P. DiNapoli

On September 29, 2023, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

Click on the text highlighted in color to access the summary and the complete audit reports

 

Brighter Choice Charter School for Girls – Non-Payroll Disbursements (Albany County)

The board and officials did not provide adequate oversight to ensure disbursements were adequately supported, properly approved,  and for a school-related purpose. Without adequate oversight, the board and officials cannot ensure that all disbursements were made as authorized or for an appropriate purpose.

 

City of White Plains – Sexual Harassment Prevention (SHP) Training (Westchester County)

SHP training was provided to employees and elected officials. However, of the 150 total individuals tested (142 selected employees and all eight elected officials), 14 employees and one elected official did not complete the annual training.

 

Germantown Central School District – Payroll (Columbia County)

The district did not have adequate payroll processes to ensure compensation paid to employees was accurate, adequately supported and authorized by the board. For example, district officials did not properly segregate payroll processing duties and did not provide adequate oversight. Auditors identified $41,000 in payroll payments to 12 employees that were either inaccurate or not authorized by the board.

 

Rapids Fire Company – Credit Cards (Niagara County)

Credit card purchases were not always made by authorized users, and 762 purchases totaling $110,938 (97% of the credit card charges made during the audit period) lacked documentation to support the purchases, confirm whether the purchases were received, and determine whether the purchases were for appropriate company purposes.

 

Town of Amherst – Sexual Harassment Prevention Training (Erie County)

SHP training was provided to employees and elected officials. However, of the 100 total individuals tested (91 selected employees and all nine elected officials), 67 employees and eight elected officials did not complete the annual training.

 

Town of Rodman – Town Clerk/Tax Collector (Jefferson County)

The clerk accurately recorded, deposited and remitted the collections auditors reviewed. However, the collections were not always deposited or remitted in a timely manner. In addition, the clerk did not prepare bank reconciliations or compare known liabilities to reconciled bank balances and money on hand. As a result, there was an increased risk that collections could have been lost or stolen.

 

Village of Lindenhurst – Sexual Harassment Prevention Training (Suffolk County)

None of the village’s 240 total employees and six elected officials were provided SHP training during the 2021 annual training period.

 

Yates County – Sexual Harassment Prevention Training

SHP training was provided to employees and elected officials. However, of the 45 total individuals tested (23 selected employees and all 22 elected officials), three elected officials, including the sheriff and two coroners, did not complete the annual training.

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Former medical office manager arrested for scheme to defraud the New York State Health Insurance Plan

New York State Comptroller Thomas P. DiNapoli reported the Officer Manager [OM] for numerous doctors’ offices in Manhattan defraud the New York State Insurance Plan [NYSHIP] out of over $12,000 by submitting fraudulent claims for reimbursement. OM was arrested following a joint investigation conducted by Comptroller DiNapoli, Ulster County District Attorney Clegg, and the FBI Hudson Valley White Collar Crime Task Force.

The Comptroller said that OM "allegedly took advantage of her position to fund her lifestyle at the expense of the taxpayers". Di Napoli noted his partnerships with Ulster County District Attorney Clegg and the Federal Bureau of Investigation in the investigation of this fraud and said "the defendant will be held accountable.”*

The Comptroller indicated that the joint investigation "revealed that from 2018 through September of 2019, the OM submitted false claims to NYSHIP under her husband’s NYSHIP identification number claiming that medical services were provided by two out-of-network providers for whom she worked, but the services actually never occurred." Through this scheme, OM received $12,957.50 from NYSHIP to which she was not entitled and "used the funds that she received from NYSHIP to pay her personal expenses including credit card debt."

The investigation was initiated as the result of a complaint submitted by United Healthcare's Special Investigations Unit and which assisted in the investigation.

OM was arraigned in Town of Ulster Court before Judge Kesick and was charged with Grand Larceny in the third degree, Healthcare Fraud in the third degree, Offering a False Instrument for Filing in the first degree, and Falsifying Business Records in the first degree. 

* N.B. The charges filed in this case against OM are merely accusations and the OM is presumed innocent unless and until proven guilty in a court of law.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be submitted to the State Comptroller via the Internet by clicking on investigations@osc.ny.gov, by calling the toll-free Fraud Hotline at 1-888-672-4555, or by mailing a complaint to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

Amendments to Education Law Section 310 appeals to the Commissioner of Education proposed

On the New York State Register published proposed changes concerning appeals to the Commissioner of Education pursuant Education Law Section 310.* The proposed amendments were filed by the New York State Department of Education "to ensure that the appeals process serves as an expeditious and simple method to address questions [involving] school administration."

The text of proposed changes and any required statements and analyses may be obtained from Kirti Goswami, Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov.

Comments, views or arguments concerning the proposed changes may be submitted to Daniel Morton-Bentley, Esq., Counsel, Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: REGCOMMENTS@nysed.gov.

Comments from the public will be received until 60 days after publication of this notice which publication was posted in the September 27, 2023 issue [Vol. XLV, Issue 3] of the State Register.

* The proposed changes seek to amend §§275.2, 275.7, 275.9, 275.11, 276.9, 277.1 and 277.2 of Title 8 NYCRR.