Appeal of GUILAINE LEGER-VARGAS from actions of the Board of Education of the Monroe-Woodbury Central School District, board member Jennifer Trumper, board president Dr. Michael J. DiGeronimo, Superintendent Edward Mehrhof, Chief Information Officer Hugh Cauthers, District Clerk Leah Schifano, Natalie Brooks, Eleni K. Carter and John Otero regarding an election, and application for the removal of Superintendent Edward Mehrhof, board member Jennifer Trumper and board president Dr. Michael J. DiGeronimo.

Decision No. 16,771

(June 17, 2015)

Thomas, Drohan, Waxman, Petigrow and Mayle, L.L.P., attorneys for respondents board of education, Jennifer Trumper, Dr. Michael J. DiGeronimo, Edward Mehrhof, Hugh Cauthers, and Leah Schifano, Daniel Petigrow, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals actions of the Board of Education of the Monroe-Woodbury Central School District (“respondent board”), Jennifer Trumper (“respondent Trumper”), Dr. Michael J. DiGeronimo (“respondent DiGeronimo”) and certain school district employees regarding the conduct of the district’s May 15, 2012 school board election and seeks to overturn the results of such election.

Petitioner also seeks removal of respondents Trumper and DiGeronimo from the board, and Edward Mehrhof (“respondent Mehrhof”) as superintendent.  Additionally, petitioner seeks the reprimand and fine of district officials and employees.  The appeal must be dismissed and the application denied.

On May 15, 2012, the district held its annual election in which six candidates ran to fill three board vacancies.  John Otero, Natalie Brooks and Eleni Carter were elected to fill the three seats on the school board.

Petitioner, an unsuccessful candidate, complains that respondents, other than Otero, Brooks and Carter, engaged in conduct prior to the May 15, 2012 election that interfered with her campaign and the election.

On April 16, 2012, petitioner submitted a nominating petition to the district clerk to run for election to the board of education at the May 15, 2012 annual district meeting. 

On or about May 2, 2012, respondent Trumper sent a personal email to a number of individuals, highlighting certain signatories to petitioner’s nominating petition – specifically those from a Hasidic community – and questioning petitioner’s motivation for seeking a seat on the school board.  She alleged that petitioner was aligned with the community and its interests.  The local newspaper reported this and subsequently ran excerpts from Trumper’s May 2, 2012 email. Subsequently, emails were sent from and shared among various district residents, including some district employees, raising concerns about petitioner’s alleged connection with the “special interest group”.  On or about May 14, 2012, respondent Mehrhof and Chief Information Officer Hugh Cauthers (“respondent Cauthers”) forwarded to a number of district employees an email received by respondent Mehrhof, signed “Citizens to Protect Monroe-Woodbury Public Education from Special Interest Groups” (“Citizens email”) with an attached flyer bearing the district’s logo, and asked whether anyone knew the source of the email or flyer. 

The election took place on May 15, 2012, and the results were as follows, with the top three candidates – Otero, Brooks and Carter – winning seats on the board:

John Otero - 3,082 votes

Natalie Brooks – 2,969 votes

Eleni Carter – 2,873 votes

Mark O’Brien – 1,362 votes

Clara Munoz-Feliciano – 1,163 votes

Guilaine Leger-Vargas (petitioner) - 963 votes

This appeal ensued.

Petitioner claims that the actions of all respondents – except Otero, Brooks and Carter – taken in connection with the email correspondence and newspaper articles prior to the May 15, 2012 election amounted to slander, libel, defamation, intimidation, anti-Semitism, bigotry and cyberbullying.  Petitioner further alleges that, by forwarding the May 14, 2012 email correspondence for investigative purposes, respondents Mehrhof and Cauthers improperly used school district resources to influence the outcome of the election.  She seeks nullification of the election results.  Petitioner also asserts that, consequently, respondents Trumper, DiGeronimo and Mehrhof should be removed.  She also contends that respondents Mehrhof, Cauthers and Schifano should be reprimanded and fined, based upon the content and alleged impact of the above referenced emails.  Lastly, petitioner seeks a public apology from those respondents.

Respondents generally deny petitioner’s claims, except to agree that she was a candidate in the May 15, 2012 election and that the underlying email correspondence occurred.  Respondents contend that, to the extent district personnel shared any email, such action was solely and properly for investigation purposes.  Respondents further contend that petitioner failed to demonstrate any irregularities occurred that affected the outcome of the election.

With respect to petitioner’s application for removal, respondents assert that the application fails to comply with the notice provisions required by §277.1 of the Commissioner’s regulations.  They further contend that petitioner failed to establish grounds for removal.

To the extent that petitioner seeks reprimand and fining of district employees, along with the issuance of a public apology, respondents argue that the petition should be dismissed for lack of subject matter jurisdiction.  Respondent also maintains that I lack jurisdiction over petitioner’s claims of libel, slander and defamation.

I must first address several procedural issues.  As an initial matter, I note that petitioner submits newspaper articles as exhibits to her petition.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Rockwell, 51 Ed Dept Rep, Decision No. 16,355; 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, Decision No. 15,324).  Therefore, I have not considered such articles for the veracity of their content.

Next, the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  In addition, to the extent that petitioner’s reply also addresses other appeals pending before me,[1] such submission is improper and those portions will not be considered herein.  Consequently, I have also not considered the responding affidavits of John Harrigan and Eleni Carter, sworn to on September 4, 2012, submitted by respondents, or petitioner’s September 18, 2012 affidavit in response thereto.

I note that respondents’ memorandum of law raises for the first time a claim of defect in personal service with respect to respondent DiGeronimo.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, respondent DiGeronimo’s assertions regarding service of the petition cannot be considered.  Failing to include such claim in his answer constitutes a waiver of that defense. 

To the extent petitioner seeks removal of respondents Trumper, DiGeronimo and Mehrhof, however, I take judicial notice that Trumper and DiGeronimo are no longer board members, nor is Mehrhof the superintendent, and thus that issue is academic.  Moreover, the removal application failed to comply with §277.1 of the Commissioner’s regulations in that it lacked the required notice of petition and, thus, did not secure jurisdiction over the intended respondents (Application of Wolpin, 52 Ed Dept Rep, Decision No. 16,489; Application of Kroniser, 52 id., Decision No. 16,469; Application of Carrion, 50 id., Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050). 

Next, to the extent that petitioner seeks reprimand and imposition of a fine upon district employees, there is no provision in the Education Law authorizing a reprimand or fine of a board member or district staff by the Commissioner of Education (Appeal of Tillett, 52 Ed Dept Rep, Decision No. 16,473; Appeal of C.Z., 52 id., Decision No. 16,450; Appeal of Oglesby, 51 id., Decision No. 16,311; Appeal of Boni, 41 id. 214, Decision No. 14,666).  Furthermore, I have previously held that the board of education has the sole authority and responsibility to determine if disciplinary action against a district employee is warranted, not the Commissioner (Appeal of Lloyd, 39 Ed Dept Rep 537 Decision No. 14,303; Appeal of Basil, id. 568, Decision No. 13,929).  Therefore, I lack jurisdiction with respect to those matters.

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, et al. v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Lanzilotta, 48 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 v. Ambach, et al., 112 AD2d 640).  Implicit in these decisions 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 fairness of the election (Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748; Appeal of Georges, 45 id. 453, Decision No. 15,380).

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. 15,678; 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, Decision No. 15,232).  Additionally, mere speculation as to the effect of alleged irregularities provides an insufficient basis on which to annul election results (Appeal of Crawford, et al., 47 Ed Dept Rep 413, Decision No. 15,739; Appeal of Kudlack, 45 id. 272, Decision No. 15,319). 

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 id. 348, Decision No. 15,882).  On this record, petitioner has not established that an irregularity occurred or that the outcome of the election was affected by the alleged actions of respondents. 

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 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; Stern, et al. v. Kramarsky, et al., 84 Misc 2d 447; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  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 Wallace, 46 Ed Dept Rep 347, Decision No. 15,529; Appeal of Hager and Scheuerman, 43 id. 363, Decision No. 15,019).

To the extent that petitioner claims that Trumper’s May emails constituted improper use of district resources to exhort district voters, such claim is without merit.  The emails were sent from Trumper’s personal email account and do not indicate that she was representing the board of education.  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 views about issues concerning the district and engage in partisan activity, provided school district funds are not used (Application of Vogel, 46 Ed Dept Rep 481, Decision No. 15,570; Appeal of Wallace, 46 id. 347, Decision No. 15,529).

Petitioner also has not established that respondents Mehrhof and Cauthers’ forwarding of the Citizens email to certain district employees on May 14, 2012 constitutes impermissible exhortation of voters.  Respondents Mehrhof and Cauthers’ aver that the purpose of sending the email was only to inquire, as part of their investigation, whether anyone knew the author of the Citizens email.  Although petitioner questions the propriety of Mehrhof and Cauthers themselves conducting the investigation, I do not find it to be improper.  Moreover, I cannot conclude that respondents’ actions constituted impermissible partisan activity.

Moreover, in the May 15, 2012 election, petitioner obtained 963 votes, 1,910 fewer than would have been required to surpass the third highest candidate’s votes and secure one of the three vacancies on the board.  Petitioner submits no affidavit from any district voter demonstrating that the alleged actions of respondents influenced his or her vote in the election.  Petitioner, therefore, has not established that any irregularity occurred that affected the outcome of the May 15, 2012 vote.

To the extent that petitioner raises claims that do not arise under the Education Law, such as defamation and slander, I lack jurisdiction over such claims and, therefore, need not address them (Appeal of P.S., 49 Ed Dept Rep 61, Decision No. 15,958; Appeal of Federico, 35 id. 269, Decision No. 13,538).

Similarly, to the extent that petitioner seeks an apology, the Commissioner lacks authority to order a board of education or school district employee to do so (Application of McDougall, 42 Ed Dept Rep 195, Decision No. 14,819; Appeal of Phillips, 41 id. 10, Decision No. 14,595; Appeal of Lloyd, 39 id. 537, Decision No. 14,303).

Finally, to the extent that petitioner raises claims pursuant to the Freedom of Information Law (“FOIL”), §89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id.  438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

In light of this disposition, I need not address the parties’ remaining contentions.

Although I must dismiss the appeal and deny the application for removal for all of the reasons set forth above, the parties are reminded that public officials and employees can and should avoid unnecessary contention, particularly by ensuring that their actions cannot be interpreted as offensive to any specific individual or group.

THE APPEAL IS DISMISSED AND THE APPLICATION DENIED.

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