The attorney for candidates in a contentious Hempstead school board race said he will appeal election results to state Education Commissioner John B. King Jr. after a state judge said he did not have jurisdiction in the matter.
The announcement came after a hearing Thursday before State Supreme Court Justice Arthur M. Diamond in Mineola. The judge did grant a temporary restraining order to preserve all records associated with Tuesday's vote.
At issue are scores of absentee ballots that led to the declaration Wednesday of incumbent Betty Cross' election over Maribel Touré by six votes. Ricky Cooke, top vote-getter among seven candidates running for two at-large posts, was sworn in to the other open seat.
Hempstead attorney Fred Brewington said he will appeal to King as soon as possible.
Jonathan Burman, a state Education Department spokesman, said, "School board elections are handled locally, and local school officials must determine if a candidate has been elected. Challenges to election results declared by the school district must be appealed, in the first instance, to the commissioner of education."
Education law and the commissioner's regulations govern the appeals process.
According to the department's website, "the commissioner gives great deference to decisions by local officials." Even if he would have decided the matter differently, "he will not substitute the district's judgment with his own" unless he can find "no rational, reasonable basis for the district's actions."
The state's website said, too, that a decision could take several months.
It said the commissioner can remove a trustee if he finds "willful misconduct or neglect of duty." But he will not do so "unless it is clearly established that the officer acted intentionally and with a wrongful purpose to . . . violate the law . . . neglect his duty, or . . . disobey a decision, order or regulation of the commissioner."
The commissioner will not remove a school officer "if he or she has merely used poor judgment," the website says.
Brewington and Touré believe she will be found to have gotten more votes than Cross after the disputed ballots are thrown out. The attorney said the judge's decision will help him prove the "criminal theft of this election."
Austin Graff, an attorney for the school district, said he stands behind the handling of the election. "There is nothing to tell me that it wasn't done properly," he said. Cross was not present at the hearing.
The district argued in court that only King could decide the matter and cited two cases as precedent. One involved an election in the Roosevelt school district that was decided in 1987, and the other concerned a vote for expansion of a North Hempstead school in 1964.
According to the Nassau County Board of Elections, absentee ballots are given only to people who are unavoidably absent from the county on election day, are unable to appear at the polls because of illness or disability, are a patient in a Department of Veterans Affairs hospital, or are in jail awaiting grand jury action or in prison for a non-felony offense.
Roger Tilles, Long Island's representative on the state Board of Regents, which sets education policy, said he was concerned about the legal wrangling, but added there are no easy solutions to the Hempstead district's academic and political troubles. At a Regents meeting Monday in Albany, Tilles urged the panel to take significant action in the district, in part by appointing a distinguished educator as a state monitor of its school board.
His call stemmed from results of a recent Education Department audit that found district employees routinely and improperly meddled with students' test scores, changing 2,225 quarterly and final grades for 1,294 high school students in the 2012-13 school year.
However, in a phone interview Thursday, Tilles said he agreed with colleagues, including King, that the monitoring approach has limitations.
"A monitor works only if the board works with the monitor," Tilles said.
King had said Monday he will come up with recommendations for action in Hempstead.
Regents have appointed monitors for a Long Island district once -- Roosevelt in 1995. The monitoring eventually led to a direct, 11-year state takeover of Roosevelt that ended last year. Tilles and other state officials have ruled out more takeovers.
With John Hildebrand