Frequent Legal Challenges to School Elections and Budget … · The legal notice must specify the...

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Frequent Legal Challenges to School Elections and Budget Votes

Minimize the Risk in Your District

Presented By:

Aileen Abrams, Esq. Assistant Counsel

New York State School Boards Association 24 Century Hill Drive

Latham, New York 12110-2125

and

Dana Lundberg, Esq. Lundberg & Gustafson LLP

202 West Fourth Street, PO Box 579 Jamestown, New York 14702-0579

at

2009 NYSSBA Annual Convention October 17, 2009

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1. The Annual Meeting and Election

a. Purpose: at the annual meeting and election, the qualified voters of the school district vote on the school budget, elect members to the board of education, and vote on other specific propositions. NY Educ. Article 41. The district clerk serves as the clerk of the annual meeting and election. NY Educ. §2025(3).

b. Date, Time & Place of the Annual Meeting and Election

i. Both the budget vote and board member election must be held on the 3rd Tuesday in May. NY Educ. §1804(4), 1906(1), 2002(1), 2022(1), 2601-a(2).

1. Exception: at the request of a local school board, the Commissioner of Education may certify no later than March 1st that the election would conflict with religious observances. When this exception applies, the election will be held on the 2nd Tuesday in May.

ii. For union free, central, and common school districts, the annual meeting and election must occur during at least 6 consecutive hours after 6:00 a.m., two hours of which must be after 6:00 p.m.. The actual times are determined by resolution of the board of education/trustees. NY Educ. §2002(1)

iii. In small city school districts, the annual meeting and election must be held during at least 9 consecutive hours, beginning not earlier than 7:00 a.m., two hours of which must be after 6:00 p.m. The actual times are determined by resolution of the board of education/trustees. NY Educ. §2602(3)

iv. Exception for school districts that are not divided into election districts and which conduct their election/vote by a show of hands or voice vote: must hold annual election/meeting at 7:30 p.m., unless the time has been changed by a vote at a previous district meeting. NY Educ. §2002(1).

c. Notice of Annual Meeting and Election

i. The district clerk must give notice in the manner prescribed by law of the time and place for the annual meeting and election. NY Educ. §2121(4)

ii. Publish 4 times during the 7 weeks before the election in 2 newspapers having “general circulation” in the district.

1. First publication must occur at least 45 days before the date of the annual meeting and election

2. Newspaper of general circulation

a. a newspaper that is published at least weekly that contains news, editorials, features, advertising and other matter regarded as common interest, and that is of paid circulation and sent by at least 2nd class mail. NY Gen. Constr. §60

b. if the district has only 1 newspaper of general circulation, use that paper.

iii. Required Contents

1. Date, time and place of annual meeting and election

2. Date, time and place of public hearing on the budget

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3. A statement that district residents may obtain a copy of the budget at any schoolhouse in the district, during designated hours, every day other than Saturday, Sunday or a holiday during the 14 days preceding the annual meeting and election

4. Notice of any proposed tax, together with a statement specifying both the purpose and the amount of the spending for which the tax will be levied, where such tax is proposed to finance:

a. an addition to or change of site or purchase of a new site

b. purchase of any new site or structure

c. grading or improving a school site

d. purchase of an addition to the site of any schoolhouse

e. purchase of lands and buildings for agricultural, athletic, playground or social center purposes

f. construction of any new schoolhouse or the erection of an addition to any schoolhouse already built, and

g. payment or refund of any outstanding bond indebtedness. NY Educ. §416(e3).

5. Where required by statute, the substance of each specific proposition to be voted on. For example, a proposition:

a. to levy a tax by installments as a condition precedent ot the adoption of a bond resolution or capital note resolution where bonds or capital notes will be issued to finance a specific object or purpose. The notice of the meeting at which proposition shall be voted upon must state the estimated maximum cost of each item of such specific object or purpose and the estimated total cost of all items;

b. to rescind a district vote to raise money, or reduce the amount thereof;

c. to increase or decrease the of members of the board of education; or

d. to establish certain reserve funds and/or to make expenditures therefrom.

6. A statement that petitions for nominating candidates to the office of school board member must be filed in the district clerk’s office between 9:00 a.m. and 5:00 p.m. no later than 30 days before the election. For small city school districts, the requirement for filing nominating petitions is 20 days before the election

7. A statement that qualified voters may apply for absentee ballots at the district clerk’s office and that a list of persons to whom absentee ballots have been issued will be available for inspection in the district clerk’s office during each of the 5 days prior to the day of the election, except Sundays. This list should be made available during regular office hours, according to Education Law §§2018-a(6) and 2018-b(7)

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8. Where applicable, a statement of the time and place that the board of registration will meet to prepare the register of the school district together with notice that any person (who is not already registered), upon proving that s/he is entitled to vote in the district, may have his/her name placed upon the register

a. in addition, the notice shall state that the register containing the names of qualified voters will be available for inspection in the clerk’s office during hours as determined by the district on each of the 5 days prior to the day of the election, except Sunday

b. at any annual meeting, the voters of the district may adopt a resolution permitting voter registration during the hours of enrollment of school children for a school term

c. the voters may also authorize registration during specific hours of the school day, at the office of the district clerk or business office of the district by the district clerk, assistant clerk or a member of the board of registration. NY Educ. §2014.

9. Despite genuine best efforts, mistakes sometimes happen. If such errors occur, know that the results of the meeting will be upheld and not found illegal unless it appears the failure(s) within the notice were willful or fraudulent. NY Educ. §2010.

d. When the Budget Fails to Pass

i. When district voters fail to pass the board of education’s proposed budget, two options are available to the board of education:

1. adopt a contingency budget, or

2. resubmit a budget to district voters

ii. If the board of education chooses to resubmit a budget for district voter approval, the uniform budget revote date shall be the 3rd Tuesday in June.

1. the board of education essentially is calling a special meeting for the purpose of voting on the resubmitted budget.

2. if this date conflicts with a religious observance and the commissioner of education certifies same no later than March 1st, the revote is held on the 2nd Tuesday in June

iii. Important Deadlines for Budget Re-votes

1. Public hearing – schools must hold a public hearing on the budget 7 to 14 days prior to any special district meeting at which a budget vote will occur. The legal notice must specify the date, time and place for the public hearing.

2. Completing the budget – the budget must be completed at least 7 days prior to the budget hearing at which it is to be presented.

3. Making copies of the budget available to the public – copies with any necessary attachments (as set forth in law) must be made available to district residents upon their request during the 14 days immediately preceding any special district meeting at which a budget vote will occur.

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a. These documents must also be available at the public hearing on the budget vote and on the day of the budget vote.

b. The board must include information in the notice of the meeting at which a budget vote will occur that district residents may obtain a copy of the budget at any schoolhouse in the district during designated hours, on each day other than a Saturday, Sunday or holiday, during the 14 days preceding the vote.

4. Mailing the budget notice – districts must mail a budget notice to all qualified voters in the district after the date of the public hearing, but no later than 6 days prior to the date of the special meeting where the budget vote will occur.

5. Registration of voters – if the district has adopted a system of personal registration of voters, the board of registration must meet to register voters on a day(s) determined by the board of education. The date should be determined officially through board resolution.

a. The last day of that registration must not be more than 7 days nor less than 2 days before the date of the special district meeting where the vote will occur.

b. The notice of the special meeting must indicate the day(s) the board of registration will meet.

6. Absentee ballots – as with the first budget vote, districts must again make absentee ballot applications and ballots available to qualified voters.

2. Voter Propositions

a. Policy on voter propositions – districts using voting machines must have a policy on the submission of propositions by voters, for the purpose of preparing ballots for the machines.

i. The policy may require a reasonable minimum number of signatures before it will be placed on the ballot.

b. Unless a proposition is required by law to be published in the notice of the annual or special meeting/election, a petition from voters requesting placement of a proposition on the ballot must be filed with the board of education at least 30 days before the election. NY Educ. §2035.

i. If a proposition is required by law to be published in the annual meeting notice, the Commissioner has ruled that districts may adopt a policy/rule that the proposition must be submitted for the board’s consideration a reasonable time in advance of when the law requires the publication of the first notice.

c. The board may reject voter propositions that are not within the power of the voters, or if the proposition requires an expenditure of funds but the proposition fails to state the amount necessary. The board may cure defects in the language of a proposition submitted to the board in order to bring the proposition into conformity with the law. However, it is not required to do so.

3. Public Hearing on the Budget

a. At this meeting, the proposed budget for the upcoming school year is presented to the voters in plain language but also with significant detail.

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b. Timeline

i. The district must hold a public hearing on the budget at least 7 days, but not more than 14 days, before the annual meeting/election or special district meeting (i.e., in the case of a budget re-vote).

ii. Notice of the date, time and place of the hearing must be included in the annual meeting notice or special meeting notice.

4. The “Budget Notice”

a. The Budget Notice form must be sent to all qualified voters in the district following the public hearing on the budget and in no event later than six (6) days prior to the budget vote (or re-vote).

5. Budget Advocacy

a. Boards of Education may disseminate purely factual information to voters about the budget vote.

i. Factual materials prepared by the district administration or board of education which are designed to reach the entire electorate and which help voters make an informed decision are permissible. See Appeal of Prentice, 38 Ed. Dep’t Rep. 736 (1999).

ii. In fact, the Commissioner of Education has stated that school boards and superintendents have a “statutory obligation” to present and publicize school budgets to maximize voter comprehension and participation. See Gersen v. Mills, Sup. Ct., Albany Co., Special Term, April 21, 2000 (reversed on other grounds).

b. School districts may not use district resources or personnel to exhort the electorate to vote in a particular manner or with respect to an item that the district will ask the voters to consider. See Phillips v. Maurer, 67 N.Y.2d 672 (1986).

i. The Commissioner has clarified that decision and expanded upon same to hold that district funds, facilities, and channels of communication may not be used to engage in direct or indirect advocacy on behalf of, or against, any item on the ballot.

ii. This prohibition is not limited to urging voters to vote “yes” – statements that do not specifically urge a yes vote might violate the law if they otherwise convey support for a particular position. Appeal of Meyer, 38 Ed. Dept’ Rep. 285 (1998).

1. District funds may not be used to convey favoritism, partisanship, partiality, approval or disapproval of any issue. Appeal of Gravink, 37 Ed. Dep’t Rep. 393 (1998).

2. Boards of education may not engage in indirect partisan activity (i.e., permitting others to use the district’s channels of communication to promote a partisan position). See Appeal of Miller, 39 Ed. Dep’t Rep. 348 (1999). Because boards of education are ultimately responsible for how district facilities are used, even the appearance of impermissible partisan activity must be avoided.

iii. Targeting – any activity by a district that has the purpose of increasing turnout on election date, when the voters so targeted are those perceived as more likely to support a particular proposition or agenda item. The use of specialized mailings or distributions that suggest partisan activity by targeting particular groups has been

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deemed improper by the Commissioner. See Appeals of Schadtle and Wilcox, 38 Ed. Dep’t Rep. 599 (1999).

c. Use of District Channels of Communication

i. Use of premises by outside groups – boards of education are ultimately responsible for the use of school property by outside groups. The Commissioner has warned that boards should prevent the distribution of partisan information at events conducted on school premises that advocate a particular position on a budget vote, to avoid any confusion over whether the event is sponsored by the district. See Appeal of Krantz, 38 Ed. Dep’t Rep. 485 (1999).

ii. Use of district mailing labels – boards of education should not make mailing labels available to outside organizations, to ensure they are not used to exhort the electorate to vote in a particular way. See Appeal of Hoey and Kososwski, 45 Ed. Dep’t Rep. 501 (2006).

iii. Use of school mailboxes and e-mail – the board of education cannot permit partisan groups to use the district’s channels of communication to espouse a position or to solicit favorable votes. This action would violate the constitutional prohibition against the use of public funds to promote a partisan political position. See Appeal of VanAllen, 38 Ed. Dep’t Rep. 701 (1999). This same principle applies to e-mails and district e-mail addresses. See Appeal of Himmelberg, 46 Ed. Dep’t Rep. __ (2006).

d. Students

i. Districts must ensure teachers, staff, and other groups do not preach partisan positions to a captive audience of students (such as during class or assemblies), as this activity would constitute indirect district support by the district of a particular position in violation of the constitution. See Appeal of Lawson, 36 Ed. Dep’t Rep. 450 (1997).

ii. However, students may have greater rights to advance their own partisan views in venues such as school newspapers or distributing partisan literature, under First Amendment jurisprudence. Whether these rights may be limited is a fact-specific inquiry best directed to the school’s legal counsel.

iii. The Commissioner has ruled that there is nothing improper in permitting teachers to register students to vote who are age 18, as long as the student is not encouraged to vote in a particular way at the election or vote. See Appeal of Hoefer, 41 Ed. Dep’t Rep. 203 (2001).

e. Board member expression of personal views – individual board members may express their views on a topic, including the school district budget and annual election.

i. However, they must be careful to do so only at their own expense, and to ensure that any view is clearly marked or distinguished as expressing only that of the individual board member, and not the district or the rest of the board of education.

ii. Letters to the editor – do not use district resources to create or send the letter, and clearly distinguish the author as speaking only for himself or herself and not any fellow board members or the board of education as a whole. See Appeal of Johnson, 45 Ed. Dep’t Rep. 469 (2006).

6. Voter Qualifications and Voter Registration

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a. Only “qualified voters” may vote in district elections. A qualified voter is one who is:

i. Citizen of the United States

ii. At least 18 years old

iii. A “resident” of the district for at least 30 days prior to the meeting at which s/he offers himself/herself to vote

1. A person may only have one legal residence for purposes of voting in district elections.

2. A residence is the fixed and permanent home of the voter. See Palla v. Suffolk County Board of Elections, 31 NY2d 36. It is the place where a voter always intends to return to make his/her permanent home.

3. Property ownership in the district does not alone confer residency status on a potential voter. See Matter of Silber, 15 Ed. Dep’t Rep. 355.

iv. Not otherwise prohibited from voting under Election Law §5-106 (i.e. a person adjudged mentally incompetent)

b. Voter Registration

i. The County Board of Elections provides districts with a list of voters at least 30 days prior to any regularly scheduled election, and updates that least at least 10 days before the election or any special election.

1. In small cities, the board of education can compel the board of elections to provide this list by March 1st of each year. NY Educ. §2609(2).

2. The board of elections has the authority to elect to furnish, instead of the original register of voters, either a duplicate of the central file registration records or a list of registered voters that is certified to be a complete and accurate copy.

3. The board must return the register the day following the election.

4. The board of education can use such registers on election day to verify signatures of each voter.

ii. Personal Registration

1. If the board of education adopts a resolution establishing personal registration of voters, it must notify the appropriate board of elections within 5 days of its adoption

a. it must also notify the board of elections of the date of the annual district meeting and election at least 45 days before such meeting, and

b. at least 14 days before the date of any special district meeting. NY Elec. Law §5-612(5).

2. In a district with personal registration of voters, voters can be required by school officials to show proof of residency as a condition on maintaining the voter’s name on the registration list.

a. In small city school districts that use the county board of election’s certified registry list in place of the original register, the board can

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require that voters offer proof of identity before being allowed to vote.

b. The board must, however, establish reasonable rules and regulations (i.e., through policy) to govern this process no later than 10 days before the election. NY Educ. §2609(2).

3. In districts without personal registration of voters, the law does permit the board of education to adopt a policy requiring all persons wishing to vote to provide one form of proof of residency. The form of the proof required can be determined by the board of education. NY Educ. §2018-c; Appeal of Pugliese, 40 Ed. Dep’t Rep. 499 (2001). The board can also require voters to provide their signature, printed name and address before voting.

4. There is no legal authority for school districts to permit voters to register by mail. See Appeal of Pecher, 30 Ed. Dep’t Rep. 116 (1990).

5. Voter registration deadlines:

a. The time and location of voter registration is set by the board of education in a resolution.

b. The last day of registration must not be more than 14 days nor less than 5 days before the annual meeting/election.

c. Registration must be open for at least 4 consecutive hours between 7:00 a.m. and 8:00 p.m.

d. Voters may not register at the annual meeting/election and vote that day. The registration would be valid only for future meetings/elections. See Appeal of Collins, 39 Ed. Dep’t Rep. 226 (1999).

6. Where personal registration is in place, individuals may vote if they are either registered with the school district’s board of registration or with the county board of elections. See Appeal of Meunch, 38 Ed. Dep’t Rep. 649.

7. The registration list must include the names of everyone who registered to vote at the meeting/election.

a. The name of anyone who died or moved from the school district must be removed.

b. The list must include the name and street address of each voter, arranged alphabetically by last name

c. The list must have a column(s) in which to indicate whether each person listed voted previously in any school district election or meeting.

8. The board of registration prepares the list of registered voters. NY Educ. §2014(2).

a. The board of registration consists of 4 qualified voters of the district, who are appointed annually by the school board no later than 30 days after the district’s annual meeting/election. NY Educ. §2014(1).

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b. This board of registration serves until 30 days after the annual meeting/election the following year. Id.

c. The board of registration is entitled to compensation at a rate fixed by the board of education, for each day actually and necessarily spent on the duties of the office. Id.

d. If a vacancy in the board of registration occurs, the board of education may fill same by designating a qualified voter to fill the vacancy. Id.

e. The board of registration is compensated at a rate fixed by the board of education, for each day actually and necessarily spent on their duties. Id.

9. Voter registration lists

a. Must be filed in the office of the district clerk at least 5 days before any school district meeting/election.

b. Lists are open and available to the public by any qualified voter, at all reasonable times and days of the week (except Sunday), up to and including the date of the annual meeting.

c. Note: in small city schools, there is no requirement that the list of registered voters be made available on the date of the annual meeting.

iii. Abolishing Personal Registration of Voters

1. A board of education may abolish its system of personal registration of voters by passing a resolution at least 2 months before the next school district meeting/election.

2. Once it is abolished, personal registration cannot then be reinstituted without voter approval. NY Educ. §2014(3).

iv. Election Districts

1. Only permissible in districts that have adopted personal registration of voters. See Matter of Christie, 1 Ed. Dep’t Rep. 5 (1958).

a. In union free school districts and central school districts that have adopted personal registration of voters, either the board of education or the majority vote of qualified voters at a district meeting may divide the district into election districts. NY Educ. §2017(1).

b. Each election district must have at least 300 voters and, if possible, a school building. Voters then vote in their designated election districts.

2. Once the decision to establish election districts is made, the board of education must immediately adopt a resolution dividing the district into as many election districts as it chooses.

3. These election districts continue in existence until modified by board resolution. Any resolution changing the number of election districts must be adopted at least 30 days before the annual special meeting or election.

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4. Where a district has been divided into election districts and a system of personal registration is in place, the board of education shall appoint a board of registration consisting of as many members as shall provide two for each election district, shall designate a place in each election district, and shall designate two members of the board of registration to attend there for the purpose of registering voters. The board of education has the responsibility to designate the registration place where the district clerk will be located. NY Educ. §2014(4).

c. All qualified voters present at the polling location at or before the time the polls are closed must be allowed to vote. NY Educ. §2033.

7. Poll Watchers

a. Only school board candidates in districts with personal registration may appoint poll watchers. NY Educ. §2019-a(2), (d); Appeal of Chaplin, Jr., 30 Ed. Dep’t Rep. 420.

b. However, poll lists must be made available on the day of the election, and are public documents that can be inspected and copied. Additionally, any qualified voter may challenge another voter’s qualifications to vote on the day of the election, even if that person is not a designated poll watcher.

8. Absentee Ballots

a. All school districts are required to make absentee ballots available to voters who are unable to vote in person on the day of the election.

b. Ballots must be received no later than 5:00 p.m. in the office of the district clerk on the day of the election.

i. The district clerk transmits all absentee ballots received by 5:00 p.m. to the election inspectors.

ii. The inspectors then check the register or poll list to ensure the absentee voter did not already vote in person. The envelope containing the ballot must be reviewed to ensure it contains the necessary information (such as a voter’s signature).

1. In districts with personal registration, the signature on the envelope must be compared with the signature on the register.

iii. An envelope that is properly completed in accordance with the law is opened and the ballot is placed, folded, in a ballot box. NY Educ. §§2018-a, 2018-b.

iv. Ballots cannot be canvassed until the polls close.

v. Election inspectors are responsible for tallying the absentee ballots. See Appeal of Brower, 32 Ed. Dep’t Rep. 86 (1992); NY Educ. §2018-a.

c. Voters desiring an absentee ballot must complete an application. Voters are eligible to receive an absentee ballot if they will be unable to vote in person due to

i. Illness

ii. Physical disability

iii. Hospitalization

iv. Incarceration (unless incarcerated for a felony conviction, in which case the voter may not cast a ballot)

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v. Travel outside the county or city of residence for employment, business reasons, study, or vacation on the day of the election.

d. Voters who are permanently disabled must receive from the district clerk or other board designee (or board of registration in districts with personal registration of voters) an absentee ballot automatically, as long as the voter’s name is on the registration record on file with the County Board of Elections and is marked “permanently disabled.” NY Educ. §§2018-a(2)(g), 2018-b(2)(g). These voters must receive their ballots in the same manner as the district issues absentee ballots to all other eligible voters.

e. An application for an absentee ballot must be received by the district clerk, no later than 7 days before the election if the ballot is to be mailed to the voter, or the day before the election, if the ballot is to be issued to the voter in person.

f. In districts with personal registration, the board of registration reviews the application to ensure the applicant is a qualified voter and eligible to vote by absentee ballot. In districts without personal registration, this task is accomplished by the district clerk. NY Educ. §§2018-a, 2018-b.

i. The name of the voter to whom an absentee ballot is issued must be recorded on the district’s personal registration list or poll list.

ii. The board of registration or district clerk must note the date that the absentee ballot is issued.

g. The list of voters to whom absentee ballots were issued must be filed in the office of the district clerk and available for inspection during regular office hours until the day of the election.

9. Ballot Boxes and Voting Booths

a. The board of education must provide “a suitable box or boxes in which the ballots, folded so as to conceal the marking thereon, shall be deposited as they are received.” NY Educ. §§2030(1), 2069(1), (3).

b. The board must also provide a voting booth, or booths, and voters “shall be required to enter such booth, or booths, for the purpose of marking their ballots.” NY Educ. §§2030(2), 2069(3).

c. Use of voting machines instead of ballot boxes is permitted, for both annual and special district meetings. Under the law, use of a voting machines is deemed compliant with the Education Law’s requirement that boards of education provide ballot boxes. NY Educ. §2035(1).

i. The board may purchase or borrow voting machines.

ii. Typically, boards borrow voting machines from the county board of elections, or the county or town in which the district is located.

iii. Schools are required to defray any costs incurred in association with borrowing the machines, such as delivery costs. NY Educ. §§2035(1), 2611.

10. Voter Challenges

a. Voters Challenges in Districts with Personal Registration

i. Any qualified voter may challenge another voter’s entitlement to vote, either prior to or on election day.

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ii. If the challenge is based on a registration list, any qualified voter may file a written challenge to any person whose name appears on the voter registration list.

1. The district clerk must then file the written challenge with the register of voters, which is delivered to the election inspectors on the day of the election.

2. Then, if the challenged voter offers to vote on election day, the chairperson of the election must require the voter to complete a declaration of eligibility to vote, prior to voting. NY Educ. §2019. Anyone making the declaration must then be permitted to vote.

iii. If a challenge to a voter’s qualifications is made but that voter’s name does not appear on the voter registration list, district officials cannot permit the individual to vote unless:

1. The voter presents a court order requiring that s/he be permitted to vote, or

2. The voter agrees to subscribe to an affidavit on the outside of a ballot envelope, swearing that s/he is duly registered to vote, providing his/her address, swearing that s/he remains a duly qualified voter, swearing that his/her poll record appears to be lost or misplaced, or that s/he has been inadvertently omitted from the registration list, and stating that s/he understands that any false statement on that affidavit constitutes perjury punishable by law. Once this task is complete, the voter may be permitted to vote by paper ballot. NY Educ. §2019-a(1).

b. Voter Challenges in Districts without Personal Registration

i. Any qualified voter may challenge any other voter’s qualifications on the day of the election/meeting.

ii. Procedure:

1. The chairperson of the meeting who receives a challenge must require the challenged voter to make a written declaration: “I do declare and affirm that I am, and have been, for at least thirty days last past, an actual resident of this school district and that I am qualified to vote at this meeting.”

2. Once the challenged voter makes the declaration, s/he must be permitted to vote. NY Educ. §2019.

c. Time Limitations on Voter Challenges

i. Challenges to the qualifications of a voter must be made no later than the time when the voter presents himself or herself to vote on the day of the election. See Appeal of Grant, 42 Ed. Dep’t Rep. 134 (2002).

ii. The purpose of this requirement is to ensure that voter challenges are timely resolved, and the outcome of an election is not dependent on the conclusion of litigation over voter qualifications.

d. Board of Education Investigation of Allegedly Fraudulent Voters

i. A district may sue unqualified voters for a fine of $10 to be used for the benefit of the district. NY Educ. §2020(3).

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ii. The board of education is authorized to investigate any voters alleged to be unqualified to vote, once the meeting/election has concluded. See Appeal of Cobb, 32 Ed. Dep’t Rep. 139 (1992).

iii. If the Commissioner of Education determines that the election results were affected by votes of unqualified voters, an election can be overturned and a special meeting/election must be held. See Appeal of Cobb, id.

e. Voter Challenges to Absentee Ballots – any qualified voter may file a written challenge on the day of the election. NY Educ. §§2018-a, 2018-b.

11. Electioneering

a. Education Law §2031-a and §2609(4-a) prohibition “electioneering” on the day of the election within 100 feet of the entrance of each polling place. Willful violation of the electioneering prohibition is a misdemeanor.

b. Electioneering includes distributing/displaying a candidate’s campaign materials, or materials in support of or in opposition to the budget.

i. The board of education may display within any polling place copies of a budget or proposition that is being voted upon. NY Educ. §§2031-a(2), 2609(4-a)(b).

ii. There is nothing improper in the board of education distributing purely factual information about the budget and/or voting procedures at polling places on election day. See Appeal of VanAllen, 38 Ed. Dep’t Rep. 701 (1999).

c. Election inspectors are responsible for placing distance markers on district property to delineate the 100-foot zone. NY Educ. §§2031-a(1), 2609(4-a)(a).

12. Election Challenges

a. An individual who challenges the results of a school district meeting/election bears the burden of proof in persuading the Commissioner of Education to overturn the election results based on alleged irregularities in the conduct of the election.

i. This requires showing that the alleged irregularities actually affected the outcome of the election. See Appeal of Huber, 41 Ed. Dep’t Rep. 240 (2001).

ii. In the alternative, a challenger can attempt to demonstrate to the Commissioner that the irregularities were “so pervasive that they vitiated the electoral process” or which “demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.” Appeal of Huber, id.

b. Election improprieties must be substantial, not merely technical in nature. Mere speculation that irregularities occurred is not sufficient to succeed before the Commissioner.

13. For Additional Guidance, review State Department of Education, Educational Management Services’ publication, “District Clerk: Annual and Special School District Meetings”.

a. http://www.nysed.gov

b. 518/474-3852

http://www.nysed.gov/

New York State School Boards Association2009 Annual Convention, NYCOctober 15-18, 2009

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Legal Challenges to School Elections and Budget Votes

Ail Ab E & D L db EAileen Abrams, Esq. & Dana Lundberg, Esq.NYSSBA Annual Convention

October 17, 2009

Goals of the PresentationFamiliarity with basic legal requirementsAwareness of areas of concern and frequent challengesTips and guidance

Annual Meeting & ElectionWhat?

Qualified voters vote on school budget, elect members to the board of education, and

t th vote on other specific propositions


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Annual Meeting & ElectionWhen?

3rd Tuesday in MayException: religious observances certified by Commissioner

6 consecutive hours after 6 00 a m (two hours after 6 00 6 consecutive hours after 6:00 a.m. (two hours after 6:00 p.m.)9 consecutive hours after 7:00 a.m. (two hours after 6:00 p.m.)

Annual Meeting & ElectionHow?

Notice of the Meeting:Publish 4 times during 7 weeks before the election2 newspapers having general circulation1st publication at least 45 days before the election

Annual Meeting & ElectionHow? Notice must include:

Date, time & place of annual meeting/election and the public hearing on the budgeton the budgetAvailability of the budgetNotice of any proposed taxes and amount of money to be leviedSubstance of specific propositionsStatement regarding nominating petitions, absentee ballots, and board of registration (where applicable)


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Budget Failed to Pass?

2 Options:

Adopt a contingency budget

Resubmit a new budget to district voters3rd Tuesday in June

Budget Failed to Pass?Important deadlines:

Public hearing – 7 to 14 days prior to voteCompleting the budget – 7 days prior to voteC i f b d d il bl d i d Copies of budget made available – during 14 days immediately preceding the voteMailing the budget notice – no later than 6 days prior to the vote

Budget Failed to Pass?


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Voter PropositionsPolicy on voter propositions is required if your district uses voting machines. Boards may:

I bl d dli b i iImpose reasonable deadlines on submissionRequire a reasonable number of signatures before it will be placed on the ballotReject voter propositions that are not within the power of votersCure defects in the language of a proposition submitted to voters

Budget Advocacy

Disseminating purely factual information about candidates and/or the budget is OK!Factual materials designed to reach the electorate“Statutory obligation” per the Commissioner

Budget AdvocacyExhorting the electorate use district resources or personnel – strictly forbidden!


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Budget AdvocacyIndividual Board Member Statements?Letters to the Editor?News conferences?Targeted mailings todistrict residents?

Voter Qualifications“Qualified voters” are entitled to vote at district elections:

U.S. citizenAt least 8 ears oldAt least 18 years oldA resident of the district for at least 30 days prior to the electionNot otherwise prohibited from voting under Election Law section 5‐106

Poll Watchers Only permitted if the district has personal registration of votersPoll lists must be available on election day, however


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Absentee BallotsAll school districts must make absentee ballots available to voters who are unable to appear in person on the day of the election and cast a voteof the election and cast a vote.Eligibility:

IllnessPhysical disabilityHospitalizationIncarcerationTravel

Absentee BallotsPermanently disabled voters – must receive from the district clerk or board of registration, as applicable, an absentee ballot automatically as long as the voter’s name is on file with the County Board of Elections as name is on file with the County Board of Elections as “permanently disabled”.These voters must receive their ballots in the same way as any other absentee voter.

Absentee BallotsDeadlines for receipt of application:

If the ballot will be mailed to the voter – application must be received no later than 7 days before the electionIf the ballot will be issued to the voter in person If the ballot will be issued to the voter in person –application must be received no later than the day before the election


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Absentee BallotsObligation to review application?

Yes! Ensure voter qualification to voteEnsure eligibility to vote by absentee ballot

Voter ChallengesTo eligibility of a voter to cast a ballot

In districts with personal registration, can occur either prior to or on election day

Can be based on the registration list – challenge is to a voter’s Can be based on the registration list – challenge is to a voter s name being on the listIf voter’s name is not present on the registration list, challenge can still be filed

In districts without personal registration of voters, challenge can only be made on the day of the election

Voter ChallengesChallenges to absentee ballot voters

Any voter may file a written challenge on election day

Deadline to make a challenge:No later than when the voter presents himself or herself to vote on the day of the election

Board investigation of voter qualificationsAuthorized to do so, once the election has concluded$10 fine!


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Electioneering

ElectioneeringElectioneering = distributing or displaying a candidate’s campaign materials, or materials in support of or in opposition of the budgetProhibited by the Education Law from occurring within Prohibited by the Education Law from occurring within 100 feet of the entrance of each polling place

Electioneering


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ElectioneeringWillful violation of rules against electioneering is a misdemeanor.Election inspectors are responsible for placing distance markers on district property to show the 100 foot markers on district property to show the 100 foot boundary.

Election ChallengesWhen challenging the outcome of a school election and/or budget vote, the plaintiff must persuade the Commissioner to overturn the election results based on irregularities irregularities. Burden is on the plaintiff Improprieties must be substantial, not merely technical or procedural

Frequent Legal Challenges to School Elections and Budget … · The legal notice must specify the...

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