APR 1, 2016) 9:33AM WO.648 PLD
No. 1699)
The University of the State of Mew Pork
The State Education Department
Before the Commissioner
Appeal of JOHN P. GHEZZI, et al.* from
action of the Board of Education of the
City School District of the City of
Albany regarding a bond vote.
Appeal of MARY BETH FARR from action of
the Board of Education of the City
School District of the City of Albany
regarding a bond vote
John B. Sweeney, Esq., attorney for petitioners
Honeywell Law Firm, PLLC, attorneys for respondent, Jeffrey
D. Honeywell, Esq., of counsel
In two separate appeals, petitioners challenge certain
conduct of the Board of Education of the City School
District of the City of Albany (*respondent” or “board") in
relation to a February 8, 2016 bond vote. Because the
appeals arise out of the same facte and circumstances, they
are consolidated for decision, The appeals must be
diemissed,
According to the record, at the November 3, 2015
general election, the board’ presented school district
voters with a $196 millioi bond proposal for xenovations
and improvements to its highschool. The bond proposal was
defeated, with 5,883 votes against the proposal and 5,791
votes in favor of the proposal.
Thereafter, at a special district meeting held on
February 9, 2016, respondent résubmitted’ a revised $179.9
million bond proposal to district voters which reflected a
reduction in the cost of renovations and construction,1.2016 9:34AM NO. 648 P.
According to the district’s Official Certificate of
Canvass, dated February 10, 2016, the bond proposal passed,
with 3,974 votes in favor of the proposal and 3,783 votes
against the proposal - a difference of 189 votes. These
appeals ensued. On March 4, 2016, I granted interim relief
in Appeal of Ghezzi, est al. ("Appeal I”), precluding
yespondent board trom taking any action to implement the
February 9, 2016 bond vote regarding the high school
construction project pending a determination on the merits
of that appeal. Consequently, a similar request for
interim relief in Appeal of Farr ("Appeal II”) was rendered
moot >
In Appeal I, petitioners allege several irregularities
with regard to the conduct of the February 9, 2016 bond
vote. Petitioners assert that vespondent provided an
insufficient mumber of ballots in violation of Education
Law §§2608(3) and 2609(2); that respondent viclated voters’
privacy rights an also failed to properly secure ballots
in locked ballot boxes; that absentee and affidavit ballots
were counted before polls closed; that absentee ballots may
not have been automatically provided to certain eligible
voters with a permanent disability or iliness; that polling
sites were illegally crowded with long lines of voters and
excessive wait times; that polling sites were not promptly
open at 7 a.m, and/or lacked appropriate signage; that poll
inspectors lacked proper training; and that respondent
failed to keep an inventory of voter sign-in sheets and
paper ballots.
in Appeal II, petitioner Farr’ alleges that respondent
engaged in impermissible partisan activity by expending
public funds to advocate for the passage of the bond
Proposal at the February 9, 2016 special district meeting.
As relief, petitioners seek an order setting aside the
vesults of the February 9, 2016 bond vote and requiring a
new vote under supervision of the Albany County Board of
Elections ("BOR").
2 = note that in my order granting interim relief in Aypeal I and in my
Office of Counsel's letter regarding the fact that the Tequest for
interim relief in appeal 11 was rendezed moot, expedited briefing
schedules wexe set for both appeals, which included the opportunity for
petitioners to submit reply documents. However, petitioners did not do
a0 in either appeal.
* I note that petitioner Parr is aleo a petitioner in Appeal I.APR 1, 2016) 9:34AM NO. 648 P.
Respondent contends that petitioners lack standing to
maintain Appeal I on behalf of disabled and elderly
absentee voters; nor may petitionere maintain that appeal
as a class action, Respondent maintains that petitioners
have failed to carry their burden of proof and failed to
establish any basis for setting aside the results of the
bond vote. Respondent also contends that, in Appeal IT,
petitioner Farr failed to prove any improper expenditure of
Public funds to advocate in favor of the bond proposal.
Respondent asserts that the appeals are based on
speculation and that petitioners have failed to state a
claim entitling them to the relief sought.
T must first address several procedural issues. ay
letter dated March 23, 2016, respondent objected to
petitioner Farr’s memorandum of law in Appeal IZ as
untimely and prejudicial. By prior letter dated Narch 4,
2016, my Office of Counsel issued an expedited schedule for
the filing of pleadings and memoranda of law in Appeal II
Petitioner Farr’s memorandum of law was required to be
served on or before March 21, 2016, and respondent/s
memorandum of law was required to be served on or before
March 23, 2016. Petitioner Farr Submitted a memorandum of
law dated March 23, 2016. Commissioner's regulation
§276.4(a) provides that the Commissioner may permit the
late filing of memoranda of law upon written application by
a party, setting forth good cause for the delay and
Gemonstrating the necessity of such memoranda to a
determination of the appeal, together with proof of service
of @ copy of such application upon all other parties to the
appeal. Here, petitioner Farr submitted a late memorandum
with no request for its consideration. Subsequent to
respondent's objection to the late memorandum, petitioner's
counsel submitted a letter, dated March 24, 2016,
explaining that he misread the due date set forth in the
March 4, 2016 briefing schedule from my Office of Counsel,
However, such an excuse does not constitute good cause
sufficient to excuse the late filing of pleadings and
papers (see Appeals of McLoughlin and Wood, 55 Ed Dept Rep,
Decision No. 16,866). Further, the proposed memorandum
appears to contain arguments vesponsive to respondent/s
memorandum of law served on March 23, 2016, which is
prejudicial to respondent. In light of the above, I have
not considered petitioner's memorandum of law in Appeal IT,
Respondent argues that petitioners lack standing to
maintain Appeal I on behalf of disabled and elderlyNO. 648 P.
absentee voters and may not maintain the appeal as a class
action, I note that petitioners assert that they are
district residents and qualified voters. A person's status
as a district resident is sufficient to maintain an appeal
with respect to the conduct of an election (see Appeal of
Reese, et al., 49 Ed Dept Rep 328, Decision No. 16,044).
To the extent petitioners attempt to assert the individual
rights of others, they lack standing to do so (Appeal of
Walker, et_al., 53 Ed Dept Rep, Decision No. 16,603;
Appeals of Giardina and Carbone, 43 id. 395, Decieion No.
15,030; Appeal of Gilmore and Sorden-Thompson, 42 id. 334,
Decision No, 14,874). I also note that, with respect to
xepresenting disabled and elderly absentee voters,
petitioners neither seek class status nor meet applicable
standards on which to certify a class (see Appeal of
Gilmore and Jovdon-Thompson, 42 Ed Dept Rep 334, Decision
No, 14,874), However, petitioners as district residents
may assert a board’s failure to comply with any requirement
of the Education Law regarding the conduct of a special
meeting of district voters to establish that an
irregularity occurred in connection with such vote (see
2.9., Appeal of Wayne, 39 Ed Dept Rep 5i8, Decision No.
14,298).
Turning to the merits, to invalidate the results of a
school district election, petitioner must establish not
only that irregularities occurred, but also a probability
that any irregularities actually affected the outcome of
the election (Matter of Boyes, etal. v. Allen, et al., 32
AD2d 990, affd 26 NY2d 709; Appeal of Caswell, 48 Bd Dept
Rep 472, Decision No. 15,920; Appeal of Lanzilotta, 4@ id.
428, Decision No. 15,905), were so pervasive that they
vitiated the electoral process (Appeal of Lanzilotta, 48 Ed
Dept Rep 428, Decision No. 15,905; Appeal of Georges, 45
id. 453, Decision No. 15,380), or demonstrate a clear and
convincing picture of informality to the point of laxity in
adherence to the Education Law (Appeal _of Levine, 24 Ed
Dept Rep 172, Decision No. 11,356, affd sub nom Capobianco
¥._Ambach, et _al., 112 AD2d 640). Implicit in these
Gecisions is the recognition that it is a rare case where
errors in the conduct of an election become so pervasive
that they vitiate the fundamental faimess of the election
(Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decigion No.
15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748;
Appeal of Georges, 45 id. 453, Decision No. 15,360).NO. 648
it is well settled that mere speculation as to the
possible existence of irregularities provides an
insufficient basis on which to annul election results
(Appeal of Antaki and Mosman, 47 Ed Dept Rep 228, Decision
No. 25,678; Judgment granted dismissing petition, antaki
and Mosman v, Mills and Bd. of Educ., Pleasantville UFSD,
Sup. Ct., Albany Co,, [Platkin, J.], May 30, 2008, n.o.r.;
Appeal _of Marchesani, 44 id. 460, Decigion No. 15,232).
Similarly, it is well settled that mere speculation as to
the effect of alleged irregularities provides an
insufficient basis on which to annul election vesults
(appeal of Crawford, et al., 47 Ed Dept Rep 413, Decision
No, 15,739; Appeal of Ku@lack, 45 id. 272, Decision No.
15,329).
In an appeal to the Commissioner, a petitioner has the
burden of demonstrating a clear legal right to the relief
requested and the burden of establishing the facts upon
which petitioner seeks relief (8 NYCRR §275.10; Appeal of
Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of
Hansen, 48 id, 354, Decision No. 15,884; Appeal of P.M., 48
i 348, Decision No. 15,882).
Petitioners assert that respondent supplied an
insufficient number of ballots for the February 9 vote in
violation of Education Law §§2608(3) and 2609(2).
Education Law §2608(3) provides as follows:
There shall be delivered to the
inspectors in each school election
district on the day of the annual
election, before the opening of the
polls therein, a supply of such ballots
which shall at least equal the number
of qualified voters entitled to vote in
such district,
According to petitioners, district records indicate
that there are 44,104 qualified voters in the school
district. | Therefore, petitioners claim that, by not
supplying that number of ballots, respondent violated
Education Law §2608(3). In addition, petitioners argue
that respondent violated Education Law §2609(2), which
provides that "{ajll persons whose names appear upon the
register prepared for such election as residing in such
election district shall be permitted to vote and shall be
given ballots for such purpose...”
6APR 1, 2016 9:36AM NO. 648 P.
Education Law §2601-a(2) provides that the board of
education of such a city school district ‘shall conduct ali
annual and special district. meetings for the Purpose of
adopting a school district budget in the same manner ag a
union free school district in accordance with the
provisions of article forty-one of this title, except as
Otherwise provided by this section.” of necessity, this
extends to votes on all budgetary propositions, at special
ox annual meetings, including a bond referendum under
Education Law $416, which was made applicable to such edty
school districts by Chapter 171 of the Laws of 1996, which
enacted §2601-a and made the budgets of city school
districts with a population of less than 125,000 subject to
voter approval. Education Law §2601-a(2) also provides,
however, that provisions of Article 53 of the Hducation
Law, and subdivisions 9 and 9-a of Education Law §2502,
where applicable, relating to the qualification and
registration of voters and the procedures for the
nomination and election of members of the board of
education shall continue to apply and “shall govern ...
voting procedures with respect to the adoption of a school
district budget.” Since Education Law §2608 relates to the
nomination and ballots for election of members of the board
of education and §2609(2) relates to the qualifications of
voters, I find that such provisions do apply to the bond
vote at this special district meeting, While the Albany
City School District conducts its elections of board
members at the general election (gee Education Law
§82502[9]; 2602[1]), most city school districts conduct
their elections and budget votes simultaneously at the
annual meeting on the same ballot. | Therefore, the
procedures relating to ballots must be uniform for both the
election and the budget vote and Education Law §2601-a
accordingly makes the provisions of article 53 of the
Education Law relating to balloting applicable (see
Education Law §2602[1]).
With respect to respondent’s initial supply of
ballots, Education Law §2608(3) requires that the supply of
ballots be “at least equal to the number of qualified
voters entitled to vote in such district,” and be delivered
to the election inspectors prior to the opening of the
polls. Although it is possible to comply with this
provision by having sufficient paper ballots distributed,
xather than scanner ballots, on this record petitioners are
correct that respondent has not complied with Education LawAPR 1, 2016 9:36AM NO. 648 OP.
§2608(3). Tt is axiomatic that an adequate supply of
ballots must be produced in advance of a special meeting of
district voters, so that all voters who appear are able to
vote.
Petitioners assert that the district's initial
purchase of 5,650° scanner ballots for the February 9, 2016
vote was insufficient, resulting in the polling places
running out of ballots. Petitioners note that the number
of ballots ordered was less than half of the 11,674 votes
cast on the previous bond referendum held on November 3,
2015. ‘Petitioners allege that one polling site in
Particular, the Mater Christi School ("Mater Christi") -
Served an election district of 6,378 qualified potential
voters, which was more than the total number of scanner
ballots initially provided city-wide. According to
petitioners, as a result of respondent's failure to order
more ballots, “by about 4 p.m. ... there were not enough
ballots to continue voting throughout the city’ and
“hundreds of voters throughout the city” were stranded at
various polling places while district officials ordered
additional paper ballots, Petitioners allege that the
district‘s failure caused chaes, confusion, and a dramatic
decline in voter participation on February 9. To support
their allegations, petitioners attach to their petition
only 29 affidavits from some of the named petitioners as
well as other individuals, Although each affidavit lists
the affiant’s address, it does not state his or her polling
site. Thus, it is unclear on this record to which polling
site each alleged irregularity is attributed.‘ The
affidavits are form affidavits that list various
irregularities in general terms next to checkboxes. For
example, in 26 of these affidavits, individuals checked the
box next to “chaos and confusion” and 11 individuals
checked the box next to “polling site was out of ballots.”
However, none of the 29 individuals submitting affidavits
checked the box indicating “unable to vote no.” although
* Although petitioners allege that respondent initially ordered 5,250
scanner ballots, respondent states that it actually ordered §,650
scanner ballote in advance of the February 9 vote.
“ Respondent indicates in its mettorandum of law that a cross-reference
addrees search in the voting directory revealed that the individuals
would likely have voted at one of six polling places (Albany School for
Humanities (*ASH"), City Parke and Recreation, Albany High School,
Mater Christi, New Scotland Blementary School, or Pine Hille Elementary
School) and that one affidavit was submitted by an individual who wae
present at Eagle Point Elementary school.APR 1, 2016 9:36AM WO.648 OP.
petitioners submit photographs from Mater Christi, x note
that, while such photographs reveal a line of voters, there
is no indication in those photographs of “chaos” or
“confusion” in the polling place.
Petitioners also attach social media and local
Newspaper reports which purport to ‘document the
allegations in the petition on appeal as to the
irregularities in the conduct ef the election..."
However, it is well settled that newspaper articles do not
constitute evidence of the truth of the statements
Contained therein (Appeal of Lazarek and Roy, 55 Ha Dept
Rep, Decision No. 16,838; Appeal of Rockwell, 51 id.,
Decision No. 16,358; Appeal of Wachala, 49 id. 31, Decision
No, 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision
No, 15,826; Application of Coleman, 45 id. 282, Decigion
No. 15,324). Therefore, I have not considered such
articles or social media reporte for the veracity of their
content.
Respondent admits that eight of the 15 polling sites
Yan out of scanner ballots at some point during the day and
that the issue was reported to Catherine Cutting, the
individual charged with coordinating and overseeing the
February 9, 2016 vote. According to the affidavit fron
Cutting, several polling sites experienced a shortage of
printed scanner ballots at some point during the February 9
vote. When those inspectors contacted Cutting, she
directed them to begin using the 25 paper ballots and 25
white envelopes provided at each polling place. she
advised that, if the supply of paper ballots ran low, the
inspectors should wake photocopies of the paper ballots.
She further instructed inspectors that, during this
emergency procedure, when voters completed the sign-in
process, they were to be provided with a paper ballot and
envelope, which they would take te a privacy booth, mark
their vote, fold and place the ballot in the envelope, seal
the envelope, and return it to the black ballot box
provided with the voting materials.
According to the record, only one polling site, ASH,
experienced a significant delay (45 minutes) in voting
While waiting for additional ballots to be delivered,
According to Cutting, however, every polling site but ASH
was able to maintain continuous voting throughout the day
using some combination of printed scanner ballots or
emezgency paper ballots. Petitioners submit no reply orAPR 1, 2016) 9:37AM WO. 648 PL 10
additional affidavits to refute respondent's allegations.
Although respondent did not, prior to the opening of the
polls, distribute the number of ballots zequired by
Education Law §2608(3), respondent's emergency measures to
ensure that voters were, in fact, able to vote were
reasonable. On the record before me, petitioners have
failed to prove that a sufficient number of voters were
unable to vote or did not vote as a result of respondent's
failure to comply with Education Law §2608(3), that the
outcome of the vote was affected, or that the fundamental
fairness of the referendum was vitiated. With the
exception of the delay at ASH, one of 15 polling sites, on
this record petitioners have established only that
xespondent's failure to distribute a sufficient number of
ballots in advance contributed to long lines and
inconvenience for voters. While respondent must take steps
to avoid such a situation in the future, it is not
sufficient to create an inference that the outcome of the
vote was impacted,
Petitioners assert that vespondent did not properly
secure ballote and also violated voters’ privacy rights
with tegard to its handling of paper ballots in violation
of the Election Law. In this regard, I note that the
Election Law generally does not govern the conduct of
school district elections (Election Law §1-102; Appeal of
Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal
of Georges, 45 id. 453, Decision No, 15,380; Appeal of
Brown, et _al., 43 id. 231, Decision No. 14,980) and that
such elections are governed in small city school districts
by the provisions of Education Law, articles 41 ("District
Meetings”) and 53 ("School Elections in City School
Districts of Cities with Less than [125,000] Inhabitants"),
Indeed, Education Law §2609(1), which is set forth in
Article 53, states that ‘[sJuch elections shall be
conducted ... in accordance with the provisions of the
election law ... except as otherwise provided herein”
(emphasis supplied), Therefore, where Education Law
Articles 41 or 53 contain specific provisions pertaining to
school district votes and elections that conflict with the
Election Law, the Education Law prevails and the Election
Law does not apply.
With respect to ballot privacy, petitioners generally
assert a violation of their rights to “secrecy and privacy”
in relation to the handling of paper ballots, Petitioners
claim that voters were required to sign their names on theAPR 1, 2016) 9:37AM WO.648 PLT
ballot envelopes. Petitioners have not identified any
specific provision of Rducation Law or flection Law
pertaining to such allegation. In any event, petitioners
have not established facts to support their claim.
Petitioners state, “(ulpon information and belief,” that
inspectors at several polling sites, including the William
S. Hackett Middle School ("Hackett”) and Montessori Magnet
School (*Nontessori"), required voters “to sign their name
on envelopes into which their ballots were placed before
they were allowed to cast their ballot.” As a result,
Petitioners aver that such a requirement was “eufficient to
cause voters to either change their votes or to not cast
their vote at all given the consequences to their
employment, their children’s standing and grades in their
classes, and the general knowledge that school district
employees would know how they voted...” To support their
claim, petitioners submit 13 form affidavits from
individuals in which they checked a box next to the general
statement: "[lJack of ballot security." Five affiants
checked the box next to: “[ilmpaizment of civil and
Personal rights.” In only one affidavit did a voter state,
“I had to sign my ballot.” it is unclear from the
affidavits provided whether any of the individuals voted at
Hackett or Montessori as alleged in the petition.
Moreover, the affidavits set forth no specific facts
sufficient to support petitioners’ claim
According to Cutting’s affidavit, submitted by
yespondent, no poll inspectors were ever instructed to have
voters write their names on emergency ballots or envelopes.
The affidavit from the poll inspector at Hackett indicates
that one voter’s name appeared on the outside of the
envelope containing the voter’s paper ballot. However, it
dces not appear that the voter was instructed to do so and
the paper ballots were all removed from their envelopes and
set aside prior to counting. Therefore, the voter's name
wag not revealed with the ballot. Petitioners submit no
reply or additional affidavits to rebut respondent's
allegations. Thus, petitioners have not established facts
sufficient to support their claim,
Petitioners also claim that, at the Eagle Point
Elementary polling place ("Eagle Point”) and possibly
“other polling places," absentee ballot envelopes were
opened individually and immediately tallied by inspectors
so that each absentee voter’s vote could be discerned, in
violation of the Election Law. However, in this instance,
10APR 1, 2016) 9:38AM NO.648 PL OTR
the Election Law does not apply. Education Law §2613
specifically incorporates xducation Law §2018-a which
governs the use of absentee ballots in meetings and
elections in city school districts having a population of
jess than 125,000. ‘Therefore, the provisions of the
Blection Law pertaining to absentee ballots do not apply.
in any event, petitioners fail to establish facts to
Support theiy claim. Petitioners submit an affidavit from
one individual, Frank Commisso, Jr., who states that he
observed absentee ballots being opened at Eagle Point and
that “each envelope was opened individually and the marked
ballot was then reviewed by the inspector and tallied.” He
states that, “[blecause of this practice, I could identity
how individual voters cast their ballots." In response,
respondent submits an affidavit from board member sue
Adler, who was also present at Hagle Point with Commisso.
The Adler affidavit sets forth in detail the procedures
surrounding the opening of the absentee ballots and
completely rebuts the statements in Conmisso’s affidavit,
Petitioners have not submitted a reply nor any other
evidence to refute respondent's submission. Therefore, I
find that petitioners have failed to meet their burden of
proof with respect to the opening of absentee ballote.
Finally, with respect to ballot security, petitioners
claim that “there is no recollection by any of the voters
who discussed their experience on election day at the
various polling sites in the City of Albany of any locked
boxes in which their voted paperg [sic] ballots were to be
secured after the voters had marked their ballots," in
violation of the Election Law. In this instance, Education
Taw §2609(1) has a provision pertaining to ballot boxes
which requires only that the board provide at least one
ballot box for the ballots voted and at least one other for
the rejected or defective ballots, Section 2609 containg
no further requirements for ballot boxes. Petitioners cite
Election Law §§4-132(b) and 8-104(2) and (4), which simply
require locked ballot boxes to be used during the pendency
of an election. However, because the Legislature could
have included a requirement for locked ballot boxes in
Education Law §2609, but failed to do 89, I conclude that
such provisions of the Election Law do not apply.
Here, the record indicates that the district provided
and used ballot boxes to secure voted ballots. While 13 of
the 29 form affidavits that petitioners submitted checked
11.2016 9:38AM NO. 648 P.
the box next to “{llack of ballot security” and five
checked “[i]mpaizment of civil and personal rights,” the
affidavits do not adequately articulate any specific
irregularity or facts in support thereof. Accordingly,
petitioners have not demonstrated an irregularity occurred
with respect to the privacy and security of the ballots, or
affected the outcome of the vote or its fundamental
fairness,
Petitioners assert that absentee and affidavit ballots
were counted before polls closed, in violation of the
Election Law. Ags noted above, Education Law §2018-a
governs absentee ballots and the Election Law does not
apply. Education Law §2018-a(10) provides that “the
ingpectors of election immediately after the close of the
polls shall examine [the absentee ballots]....” In this
regard, petitioners rely on the previously-cited Comnisso
affidavit, which indicates that he observed absentee
ballots being opened at Hagle Point before the polls
closed. Adler's affidavit does indicate that, at Eagle
Point, the poll inspector started opening absentee ballot
envelopes shortly before polls closed at 9 p.m. Kowever,
Adler avers that Conmmisso fully observed the procese and
even decided to challenge two of the absentee ballots with
unsigned envelopes. Petitioners submit no reply to rebut
respondent's assertions, Therefore, although it appears
that the absentee ballots were opened shortly before the
close of one polling place in violation of Education Law
§2018-a(10), such violation is de minimus and there is no
evidence that the irregularity affected the outcome of the
vote,
Petitioners also claim that absentee ballots were not
automatically provided to certain eligible voters with a
permanent disability or illness in violation of Education
Law §2018-a(2)(g), the Blection Law, and the Americans with
Disabilities Act ("ADA"), To the extent that petitioners
assert claims under the ADA, the appeal must be dismissed
for lack of jurisdiction, An appeal to the Commissioner is
not the proper forum in which to raise alleged violations
of the ADA (Appeal of Zlotnik and Hartman, 53 Bd Dept Rep,
Decision No. 16,585; Appeal of Bd. of Educ. of City School
Dist. of City of Rye, 53 id., Decision No, 16,513; Appeals
of a Student Suspected of Having a Disability, 46 id. 539,
Decision No. 15,588; Appeal of Mogel, 41 id. 127, Decision
No. 14,636). Moreover, as noted above, petitioners lack
standing to assert the individual rights of such voters.
12APR 1, 2016 9:39AM NO.648 PL 14
However, to the extent that petitioners, as district
residents, assert an irregularity relating to the provision
of absentee ballots in a school district vote, Education
Law §2018-a(2) (g) provides as follows:
An applicant whose ability to appear
Personally at the polling place of the
school district of which he is a
qualified voter ig substantially
impaired by reason of permanent illness
or physical disability and whose
registration record has been marked
“permanently disabled” by the board of
elections pursuant to the provisions of
the election law shall be entitled to
receive an absentee ballot pursuant to
the provisions of this section without
waking separate application for such
absentee ballot, and the board of
registration upon being advised by the
board of elections on or with the list
of registered voters that the
registration record of a voter is
marked “permanently disabled’ shall
send an absentee ballot to such voter
at his last known address with a
Fequest to the postal authorities not
to forward same but to return same in
five days in the event that it cannot
be delivered to the addressee,.
Petitioners assert that approximately 700 permanently
disabled absentee voters in the City of Albany are eligible
to automatically receive their absentee ballots, However,
they allege that, prior to the February 9 vote, certain
individuals vealized that their permanently disabled family
members and friends had not received their absentee
ballots. In their petition, petitionerg state that some of
those permanently disabled voters were able to obtain
absentee ballots and vote, but that petitioners are in the
process of contacting “many of the voters on the list of
pexmanently disabled voters to learn if they received their
absentee ballots from the school district prior to the
election.”
1319
APR 1, 2016 9:39AM NO. 648 P.
Respondent denies any wrongdoing with respect to this
claim. Further, Cutting respondg in her affidavit that the
BOE sent her a list of ali permanently disabled qualified
voters in January 2016, and that she sent absentee ballots
to every permanently disabled voter on the list.
Petitioners submit no reply to refute respondent's
allegations, nor have they submitted any additional
affidavits to establish that any permanently disabled
voters did not receive an absentee ballot prior to the
veferendum and were denied their right to vote. Therefore,
petitioners’ claim is entirely speculative and must fail.
Petitioners assert that polling places were illegally
crowded due, in part, to the configuration of election
districts, causing excessive wait times in violation of
Election Law §§4-100(3) (a), 4-104(5) (a), (¢), (6) and 9 NYCRR
§6210.19° which relate to election districts and polling
places. However, in this regard, Rducation Law 82604
contains provisions regarding the division of city school
districts into election districts and specifically states
that such school districts ‘shall be so divided that if
circumstances will permit, school election districts will
be conterminous with one or more general election
districts, and that, if practicable there shall be a
schoolhouse in each election district.” The Education Law
contains no further requirements for election districte,
such as limitations on the total number of voters eligible
to vote in a combined election district,
In any event, in the petition, petitioners focus only
on waiting times at the Mater Christi polling site.
Petitioners allege that, “{ulpon information and belicf,
the polling site at Mater Christi ran out of ballots at
mid-day,” causing mags confusion, chaos, and lines. They
further allege that, “[u]pon information and belief,
dozens of voters came into the building [sic] took one look
at the lines and delays and immediately turned around and
left the voting site." To support their allegations,
petitioners rely on the 29 form affidavits they submitted;
15 have checked the box next to “[plolling site
overcrowded/lack of adequate parking.” Twenty-six checked:
“{clonfusion and chaos at the polls.” As discussed above,
none of the 29 form affidavits have a checked box next to
“fulmable to vote no” or provide sufficient facts to
5 f note that Article 53 of the Sducation Law containe no provision that
makes euch regulations applicable.
14Al
fh.
2016 9:39AM NO. 648
Support a claim that the outcome of the February 9 vote was
affected. Nor do the form affidavits identify the polling
site at which each affiant voted.
According to the affidavits submitted by the
district's poll inspectors and voters at Mater Christi,
there were long lines at times, with an hour wait at the
busiest time. Respondent admits through the affidavits
from its poll inspectors that many of the polling sites
experienced delays, long lines, scanner malfunctions,
and/or a shortage of ballots. However, the poll watchers,
voters, and inspectors at Mater Christi attested in their
affidavits that they did not see voters leaving without
voting. On this record, petitioners have not established
that the long lines and delays caused “dozens of voters” to
leave Mater Christi without voting, as they claim.
Accordingly, I find that petitioners have not proven that
the delays vitiated the fundamental fairness of the
referendum.
Petitioners assert that polling sites were not open at
7 a.m. and/or lacked appropriate signage. I note that
Education Law §2602(3), which is applicable to special
school district meetings, requires only that the polls for
such meetings be open for not lees than nine consecutive
hours beginning no earlier than 7 a.m., with at least two
such hours after 6 p.m.
Ag with their other claims, petitioners rely on form
affidavits from nine voters who checked the box indicating
“(locked doors/lack of signage," and. from 26 voters
indicating ‘[c]onfusion and chaos at the polls.” as
discussed above, these boilerplate affidavite do not
adequately articulate any specific irregularity. Further,
there is no indication that any particular polling place
lacked appropriate signage, While respondent admits that
doors at two locations were inadvertently locked for a
short time on the morning of the February 9 vote, and that
other locations experienced delays due to temporary scanner
malfunctions oz inability to immediately access the voting
materials, petitioners have failed to demonstrate that
these irregularities affected the outcome of the vote or
vitiated the fundamental fairness of the referendum. While
respondent admits that up to 27 individuals may have left
polling sites that experienced delays without voting,
respondent also states that approximately seven of these
individuals returned to vote during the day, Given that
a5
1
6Al
fh.
2016 9:40AM NO. 648
the bond referendum passed by a margin of 189 votes, on
this record, I cannot conclude that any such irregularities
affected the outcome or vitiated the fundamental fairness
of the referendum,
Petitioners also assert that inspectors lacked proper
training, Petitioners cite no legal requirement that
inspectors for a school district vote receive training by
the BOE, and indeed, none exists (Education Law §2607)
In any event, according to the affidavit from Cutting, who
wae responsible for recruiting inspectors for the February
9 vote, 45 inspectors previously served in May 2015 annual
meeting and were trained by BOR or the school district.
Further, she indicates that training for all prospective
inspectors was provided by the district on February 2,
2016. Petitioners submit no reply or additional affidavits
to refute respondent's contentions. Therefore, petitionerg
have failed to establish the existence of any irregularity
in this regard.
Petitioners assert that respondent failed to keep an
inventory of sign-in sheets and paper ballots,
Specifically, petitioners allege that an inspector from the
Arbor Hill Library polling site noticed after the vote that
the result from her polling site reported in news article
was 39 votes higher than she remembered, Petitioners claim
that, based on her statements alone, the district reduced
the vote margin from 228 to 189 in favor of the bond,
According to the record, the February 9, 2016 vote passed
by an initial margin of 228 votes, which was subsequently
reduced to a 189-vote margin, as reflected in the
district’s Official Certificate of Canvass dated February
10, 2016. Petitioners provide no affidavit from the poll
inspector or any individual to support the claim that the
mumber of votes was reduced based only on a poll
inspector's recollection, According to Cutting’s
affidavit, she personally noticed that the reported tallies
were incorrect but concluded this was likely a
communication error, and that the ballot count was correct
as reflected in the Certificate of Canvass dated February
10, 2016. Petitioners submit no reply ox additional
affidavite to rebut respondent’s contentions. Therefore,
petitioners have failed to establish the existence of an
irregularity in this regard.
Finally, in Appeal II, petitioner Farr asserts that
the district improperly used public funds to advocate for
16
1APR 1, 2016) 9:40AM WO.648 PL 1B
the passage and adoption of the bond issue. A board of
education may use public resources to present objective,
factual information to the voters concerning a vote or
election (Education Law §1716; Phillips v. Maurer, et al.,
67 Ny2d 672; Appeal of Caswell, 48 Ed Dept Rep 472,
Decision No. 15,920; Appeal of Wallace, 46 id. 347,
Decision No. 15,529), However, while a board of education
may disseminate information “reasonably necessary" to
educate and inform voters, its use of district resources to
distribute matezials designed to “exhort the electorate to
cast their ballots in support of a particular position
advocated by the board” violates the constitutional
prohibition against using public funds to promote a
partisan position (Phillips v. Maurer, et al., 67 NY2d 672;
Stern, et al. v, Kramarsky, et al., 84 Misc 24 447; Appeal
gf Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal
gf Wallace, 46 id. 347, Decision No. 15,529). Petitioner
Farr challenges a flyer sent to parents of district
students. She submits a form affidavit with checkboxes and
a copy of a mailing she received from her child's school.
The mailing contains, in part, a one-page flyer regarding
the vote and the proposed construction project, Although
Farr did not check the box on the form affidavit next to
“(ule of public resources in favor of referendum,” she did
check the box next to "[s]chool district sent out
misleading information.” In response, respondent contends
that the flyer was intended to be informational only and
Gid not constitute improper partisan activity. I have
reviewed the flyer and do not find it to be advocating in
favor of a “yes” vote or factually misleading, as with
Appeal I, petitioner submits no reply or additional
affidavits in Appeal IZ to rebut respondent’s contentions.
Therefore, petitioner has not established that respondent
improperly used public funds to exhort voters to approve
the proposed bond and her claim must fail.
On this record, petitioners have not demonstrated that
any irregularities occurred that affected the outcome of
the February 9, 2016 vote, were so pervasive that they
vitiated the electoral process, or demonstrate a clear and
convincing picture of informality to the point of laxity in
adherence to the Education Law, While the record before te
indicates that irregularities did occur in the conduct of
this election, as noted above, it is a rare case where
errors in the conduct of an election become go pervasive
that they vitiate the fundamental fairness of the election
(Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No.APR 12016) 9:47AM NO.648 P.O
15,905; Appeal of Thomas, 47 id. 442, Decision No, 15,748;
Appeal of Georges, 45 id. 453, Decision No. 15,380). Here,
the record indicates that the bond passed by a margin of
189 votes, and while petitioners have established that
certain irregularities occurred, they have not established
that such irvegularities vitiated the electoral process
such that the will of the voters cannot be ascertained and
the fundamental fairness of the referendum was impacted
(cf. Appeal of Touré, et al., 54 Ed Dept Rep, Decision No
16,660). For example, waile petitioners submitted 29 form
affidavits with their petition, none of the affiants
checked the box to indicate that they were “unable to vote
no" during the February 9, 2016 bond vote. Petitioners
have submitted no other proof that any irregularities
committed by respondent resulted in a sufficient number of
voters not voting to cast doubt on the outcome of the vote.
Given the lack of evidence produced by petitioners ang
the 189-vote margin by which the bond referendum passed, on
this record, I am constrained to dismiss this appeal. 1
cannot conclude that petitioners have established that the
fundamental fairness of the February 9, 2016 bond vote was
compromised and I find no basis upon which to overturn the
results of the vote.
Nevertheless, I urge respondent to review its
procedures and take appropriate measures to minimize delays
in voting in future elections.
THE APPEALS ARE DISMISSED,
IN WITNESS WHEREOF, I, MaryEllen
Elia, Commissioner of Education of
the State of New York, for and on
behalf of the State Education
Department, do hereunto set my
hand and affix the seal of the
State Education Department, at the
City of Albany, this det day
i 2016
Uoor2ti Boia
Commissidher of Education
1aAPR 12016) 9:47AM WO.648 PL 20
* The following individuals are also listed as petitioners:
THEODORE MARC ETOLL, THOMAS CHILLEMI, SHEILA F, JORDAN,
CHRISTINE E, LENAGHAN, MARGARET M. CZERWINSKI, STEPHEN ¥,
MARKS, JEAN B. PORTER, ROBERT HOTALING, SANDRA CHILLEMZ,
BRIAN A, BOLTON, LAWRENCE N. DACK, EDWARD R. SHANNON,
THERESA J. HEATH, DONNA M, COONLEY, DAVID A. PISANESCHT,
DOROTHY C. DACK, PATRICIA x. SHANNON, SUZANNE M, WALTZ,
KIRKHAM R, CORNWELL, SANDRA K, BRAND, JACK L, BRAND, MARY
B. S2YDLOWSKI, FRANCIS J. SZYDLOWSKI, PREDERICK M. PERKINS,
TINA KEHOE CHEEKS, and MARY BETH FARR,
1s