Appeal of VINCENT WALLACE from action of the Board of Education of the City School District of the City of Hudson regarding the use of district funds.

Decision No. 15,529

(February 14, 2007)

Rapport, Meyers, Whitbeck, Shaw & Rodenhausen, LLP, attorneys for respondent, Victor M. Meyers, Esq., of counsel

     MILLS, Commissioner.--Petitioner, a district resident and taxpayer, appeals certain actions of the Board of Education of the City School District of the City of Hudson (“respondent”) regarding the use of district funds prior to the May 16, 2006 election.  The appeal must be dismissed.

     On May 16, 2006, respondent held its annual meeting and election.  Proposition 1 contained the proposed budget for the 2006—2007 school year.  Proposition 2 contained a bond resolution for a capital project not to exceed $9,995,000 “to finance the construction of additions to and reconstruction in part of Hudson High School, and the reconstruction in part of various buildings” in the district.  The budget passed by 520 votes and the bond proposition passed by 160 votes.[1] 

     Petitioner contends that respondent improperly allowed district funds or facilities to be used to exhort voters to vote in favor of the budget and bond proposition.  He alleges that between February 2006 and the day preceding the election, school administrators printed and distributed newsletters and published web pages that encouraged favorable budget votes, and allowed school property to be used to promote the budget.  He asserts that other school personnel also shared privileged and proprietary district information with pro-budget groups, disseminated information about contingent budget cuts in order to frighten voters into voting for the budget, and distributed “Vote YES” lawn signs on school property.  He also asserts that a member of respondent improperly published an editorial in the local newspaper, that the planned activities of the Hudson City School District Booster Club (“Booster Club”) were improper, and that teachers and staff improperly encouraged students and parents to vote for the budget.

Petitioner seeks an order invalidating the election results for Propositions 1 and 2 and requiring respondent to cease all improper advocacy.

     Respondent denies that it engaged in or condoned any improper advocacy or partisan activities.  Respondent asserts that the petition is premature and fails to state a claim for which relief can be granted.  It also states that petitioner has failed to allege sufficient facts to maintain a class action on behalf of the residents and taxpayers of the district.

     Initially, I will address several procedural matters.  Petitioner attempts to bring his appeal on behalf of residents and taxpayers.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Ockimey, 44 id. 169, Decision No. 15,136; Appeal of Garmaeva, 43 id. 253, Decision No. 14,988).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Garmaeva, 43 Ed Dept Rep 253, Decision No. 14,988; Appeal of Broardt, 42 id. 126, Decision No. 14,796).  Petitioner’s pleadings are entirely devoid of any allegations addressing those criteria.  Therefore, petitioner’s request for class status is denied.

     I further note that petitioner’s reply is untimely.  Pursuant to §275.14(a) of the Commissioner’s regulations, petitioner‘s reply was due to be served on June 16, 2006.  Petitioner, however, did not serve his reply until June 20, 2006 and offered only his ignorance of the process as an excuse.  Therefore, the reply is untimely and has not been considered.

     Respondent asserts that the petition is premature because it was served before the election.  Petitioner, however, challenges activities allegedly occurred prior to the election and seeks to invalidate any approval of Propositions 1 and 2.  Under these circumstances, I decline to dismiss the appeal as premature.

     While a board of education may distribute factual information to educate and inform voters regarding a vote or election, the use of district resources to distribute materials 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; Appeal of Hager and Scheuerman, 43 Ed Dept Rep 363, Decision No. 15,019; Appeal of Stolbach, 43 id. 218, Decision No. 14,977).  Statements that do not specifically urge a "yes" vote may nevertheless violate the holding in Phillips v. Maurer, if such statements otherwise seek to persuade or convey support for a particular position (Appeal of Hager and Scheuerman, 43 Ed Dept Rep 363, Decision No. 15,019 ; Appeal of Stolbach, 43 id. 218, Decision No. 14,977).

     Moreover, it is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election (Appeal of Hager and Scheuerman, 43 Ed Dept Rep 363, Decision No. 15,019; Appeal of Eckert, 40 id. 433, Decision No. 14,520).  Even indirect support, such as a school board giving a PTA access to its established channels of communication to parents to espouse a partisan position that the board itself was prohibited from doing directly, has been deemed improper (Stern, et al. v. Kramarsky, et al., 84 Misc 2d 447; Appeal of Hager and Scheuerman, 43 Ed Dept Rep 363, Decision No. 15,019; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876).

     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 Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

     Petitioner objects to two statements made in “Hudson Highlights,” the district newsletter distributed to voters prior to the May election.  In referring to the difficult task of meeting the district’s goals in determining a budget, the newsletter stated “. . . since we have lost so much in recent years and must now try to ‘catch up' . . .;” and “. . . parts of our program had been strangled by severe cutbacks in recent years.”  After reviewing the entire newsletter, I do not find that these statements constitute advocacy.  Rather, I find that the newsletter as a whole presents information about the budget, how it was developed, how taxes are calculated, and what happens if the budget is defeated.  Therefore, I find that petitioner has failed to meet his burden of proving that any district funds were used here for improper advocacy of a “yes” vote (seeAppeal of Warshaw, 44 Ed Dept Rep 360, Decision No. 15,198).  Similarly, I find that petitioner has failed to prove that a list of proposed contingent budget cuts disseminated at a public meeting or links on the web site pages were for other than informational purposes (seee.g. Appeal of Hager and Scheuerman, 43 Ed Dept Rep 363, Decision No. 15,019).

     Petitioner also objects to certain activities contemplated by the Booster Club as recorded in the minutes of two club meetings.  However, respondent’s president, the interim superintendent and the president of the Booster Club all aver that the Booster Club is a voluntary organization that conducts its own fundraising and activities.  All three individuals state that the district did not furnish any funds, equipment, facilities, or lists of telephone numbers or addresses to the Booster Club.  Accordingly, I find that petitioner has failed to meet his burden of proving any improper use of district funds.

     In addition, petitioner claims that Booster Club members, some of whom were teachers, distributed pro-budget signs in a parking lot abutting the high school at 6:30 p.m. on May 9, 2006.  As noted above, the president of the Booster Club avers that the Club paid for the signs, and there is nothing in the record that respondent or the administration knew or consented to their distribution.  Although there is no evidence of respondent’s knowledge or consent, respondent should be vigilant in the future to avoid even the appearance of impropriety (seee.g. Appeal of Miller, 39 Ed Dept Rep 348, Decision No. 14,256).

Petitioner further contends that a May 13, 2006 editorial written by a member of respondent improperly advocated for the passage of the bond proposition.  While it is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election, individual board members are entitled to express their personal views about issues concerning the district and engage in partisan activity, provided school district resources are not used (Appeal of Johnson, 45 Ed Dept Rep 469, Decision No. 15,384; Appeal of Goldin, 40 id. 628, Decision No. 14,572; Appeal of Allen, 39 id. 528, Decision No. 14,300).

In this case, the letter provides information on the development of the proposition and how, despite the $10 million price tag, the project will not result in any new costs to taxpayers, in part by comparing the amount of projected state aid to a 95 percent discount coupon.  Although the letter does not specifically state “vote yes,” it does state:  “Would you take advantage of this offer?  The Hudson City School District hopes that you will.”  I find that this language goes beyond the transmission of mere information and is designed to persuade voters to approve the bond proposition.

There is nothing in the record indicating specifically whether the board member wrote the letter independently or whether respondent knew of or endorsed the letter, or whether any of respondent’s resources were used in the preparation or publication of the letter.  Accordingly, I cannot conclude that respondent engaged in or endorsed any improper advocacy.  However, the byline of the editorial identifies the author as a member of the board, giving the impression that the author was speaking in his official capacity.  I remind board members who wish to express their personal opinions to clearly distinguish their personal views from those of the board they represent (seeAppeal of Johnson, 45 Ed Dept Rep 469, Decision No. 15,384).

     Even if the editorial amounted to improper advocacy on the part of respondent, it would not alone constitute grounds to invalidate the bond proposition.  To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also that the irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Brown, et al., 43 Ed Dept Rep 231, Decision No. 14,980; Appeal of Stolbach, 43 id. 218, Decision No. 14,977), were so pervasive that they vitiated the electoral process (Appeal of Brown, et al., 43 Ed Dept Rep 231, Decision No. 14,980; Appeal of Stolbach, 43 id. 218, Decision No. 14,977; Appeal of Laurie, 42 id. 313, Decision No. 14,867) or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Brown, et al., 43 Ed Dept Rep 231, Decision No. 14,980; Appeal of Stolbach, 43 id. 218, Decision No. 14,977; Matter of Levine, 24 id. 172, Decision No. 11,356, affdsubnomCapobianco v. Ambach, et al., 112 AD2d 640).  Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Brown, et al., 43 Ed Dept Rep 231, Decision No. 14,980; Appeal of Stolbach, 43 id. 218, Decision No. 14,977; Appeal of Laurie, 42 id. 313, Decision No. 14,867).

     At the May 16, 2006 election, the bond proposition passed by 160 votes.  Where a vote is on a capital project and the financing thereof, petitioner’s proof must contain affidavits or statements from individuals who voted in favor of the proposition that their vote would have been otherwise but for the alleged misconduct (Appeal of Meyer, et al., 38 Ed Dept Rep 285, Decision No. 14,034).  Here, petitioner failed to submit even a single affidavit that any voter was affected by the editorial.  Given the 160- vote margin of approval, petitioner has failed to establish that any irregularity affected the outcome of the vote.  Accordingly, there is no reason to overturn the results of the proposition vote.

     I have considered petitioner’s remaining contentions and find them without merit.

     THE APPEAL IS DISMISSED.

END OF FILE

[1] Other ballot propositions and the May 2006 school board election are not at issue in this appeal.