Decision No. 12,546

(July 12, 1991)

SOBOL, Commissioner.-- Petitioner appeals from certain actions taken by respondent school district with respect to a special district meeting held on November 14, 1990, which approved a school reconstruction program and bond issue. The appeal must be dismissed.

Respondent district's high school building was built in 1957. Its elementary school buildings were constructed in 1920, 1957, and 1968. In May of 1989, the voters of the district approved a bond issue of nearly three million dollars to reconstruct the oldest elementary school building. In September of 1989, the voters approved the establishment of a capital reserve fund to be funded by annual appropriations from tax revenues. As part of an ongoing effort to upgrade its buildings, respondent board scheduled a special district meeting for November 14, 1990, for the purpose of discussing the renovation and upgrading of the high school and the newer elementary school buildings. The cost of this program was put at $8.2 million, of which $1.2 million was to be paid from the capital reserve fund and the remaining $7.0 million to be financed by a new bond issue. On November 14, 1990, the voters of the district approved this plan by a margin of 26 votes, with 1,642 voting in favor, and 1,616 voting against.

In the months leading up to the vote, the district mailed to all households within the district three newsletters, dated September, October, and November, 1990. The November issue was mailed on November 6, 1990.

In addition to the newsletters, on November 5, 1990, the East Irondequoit Parent-Teacher Associations proposed, and the board adopted, a Voter Involvement Program ("VIP"). Under this program, every person who voted at the special district meeting could afterward fill out one or more cards or coupons in order to "vote" for a public school student. The cards or coupons were deposited in boxes outside the polling place. Each voter, whether or not related to the student, could deposit only one card or coupon for any particular child, but could "vote" for as many different students as he or she wished. Entirely at the expense of the PTA, the elementary classrooms with the greatest number of student cards deposited would receive pizza parties, and several junior and senior high students (chosen by lot from the cards deposited) would receive gift certificates. After the proposal was accepted by the board, a one-page explanation of the program, at district expense, was stapled to each copy of the regular newsletter mailed on November 6. In addition to the "coupons" which were made part of the flyer itself, it appears that on the day of the special district meeting coupons were also distributed to children in the public schools to be brought home.

Petitioner contends that the VIP flyer and the November, 1990, newsletter were prepared and mailed using district funds, that they were unauthorized by law, and that they violated the principles laid down in Phillips v. Maurer, 67 NY2d 672, 499 NYS2d 675. Petitioner further claims that the VIP flyer was intended to increase voting participation by a specific segment of voters only, i.e., the parents of public school children. He further contends that the November, 1990, newsletter was misleading to the voters, because it failed to advise the voters of the millions of dollars of interest charges that would be incurred by approval of the bond issue. Petitioner requests that I order respondent district to refrain in the future from actions which attempt to influence voting by district residents, and requests that I annul the results of the special district meeting and order a new election.

Respondent contends that the appeal is untimely because the board approved the VIP program on November 5, 1990, and mailed the VIP flyer and the November newsletter on November 6, 1990, while this appeal was not commenced until December 13, 1990, more than 30 days thereafter, in violation of 8 NYCRR '275.16. Respondent further claims that petitioner has set forth no evidentiary facts sufficient to show that the result of the special district meeting would have been different but for the occurrence of the actions about which he complains. Respondent further contends that the mailings were legitimate efforts to inform the electorate about the upcoming vote, and that the VIP program was only one of several devices employed to increase voter participation across the board.

I do not find that the appeal is untimely within the meaning of 8 NYCRR '275.16, which provides as follows: "An appeal to the Commissioner must be instituted within thirty days from the making of the decision or the performance of the act complained of." That regulation was adopted pursuant to Education Law '311 to govern appeals brought to the Commissioner pursuant to Education Law ''310 and 2037. Education Law '2037 requires that all disputes concerning the validity of any district meeting or election be referred to the Commissioner, and Education Law '310 provides in pertinent part as follows: "Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same...." Because the actions complained of here were directly related to the electoral process, petitioner could not have known whether or not he was "aggrieved" until the election was actually conducted on November 14, 1990. For that reason, an appeal commenced within thirty days after the conduct of the election is in compliance with the regulation and is timely.

Matter of Scanio, 22 Ed Dept Rep 315 (1982), does not require a different result. In that appeal, as here, petitioner objected to the preparation and mailing of pre-election materials which he claimed illegally sought to bring about a favorable budget vote. However, unlike this appeal, the Scanio petition did not claim that the electoral process had been affected by those materials, nor did it ask the Commissioner to annul the election or to order a new one. Because the election itself was not put in issue by the petitioner, in that case it was properly held that "... the acts of which petitioner complains did occur more than 30 days before the appeal was instituted." 22 id. at 316.

Petitioner's request that the election results be annulled may be dealt with summarily. Petitioner has presented no evidence that any voter was influenced or misled as a result of the materials circulated by respondent, and has presented no evidence that the outcome of the election was affected. Indeed, petitioner concedes in his papers that he could not do so, but urges me to reconsider the legal standard previously established. I decline to do so. There is no basis upon which to set aside the results of the district meeting (Matter of Boyes, et al. v. Allen, et al., 59 Misc 2d 975, 302 NYS2d 440, reversed 32 AD2d 990, 301 NYS2d 664; aff'd 26 NY2d 709 [1970] 308 NYS2d 873; Matter of Riegler and Barton, 16 Ed Dept Rep 256; Appeal of Blake, 27 id. 89; Appeal of Tortorello and Bartnik, 29 id. 306).

Petitioner's claims with respect to the November, 1990, newsletter are also without merit. That newsletter presents information about district finances and about the proposed bond issue, but it cannot be said "to exhort the electorate to cast their ballots in support of a particular position advocated by the board." Phillips v. Maurer, 67 NY2d at 674.

Petitioner also claims that the November, 1990, newsletter contains false and misleading statements. His main argument is that neither the November newsletter nor the two preceding newsletters specifically pointed out that the approval of the bond issue would obligate the district to pay interest charges in excess of eight million dollars over the next twenty years. The affidavit of respondent's superintendent points out that in addition to the three newsletters, regular meetings of the board of education held on August 27, September 10, and September 24 covered the spending costs in considerable detail, as did special meetings conducted on September 4 and September 17. It further appears that written materials distributed at the meetings on September 4 and September 24 dealt with the interest charges associated with the bond issue in some detail. Although the newsletters could have addressed the issue of future interest charges in a more precise fashion, it is respondent's position that future projected real estate taxes to be collected from a newly opened shopping mall in the district will pay for debt service on the bond issue. Petitioner does not appear to dispute that claim. As a result, I cannot say that the November, 1990, newsletter is violative of the law.

The VIP program presents more difficult problems. Among other things, it contains the statement that: "Voters can `give' their votes to students by filling out Voter Involvement Program coupons that list children's names, teacher and school and placing them in boxes that will be available at the vote on November 14."

It may be argued that this type of promotional scheme is harmless, since the expense to the district is minimal, and the prizes were paid for by the East Irondequoit Parent-Teacher Associations. It may also be argued, as petitioner claims, that the program was targeted to encourage the parents of public school children, who might be more inclined to support the bond issue than other groups within the community, to vote in disproportionate numbers. Previous decisions of the Commissioner have dealt with similar claims.

In Matter of Canham, 19 Ed Dept Rep 254, it was found that board-directed telephone solicitation of a "selective list of voters who might be expected to support the adoption of the school budget gives the appearance of partisan activity" and the practice was condemned. Similar situations were discussed in Matter of Walker, 23 id. 280, Appeal of Blake, 27 id. 89, and Appeal of Tortorello and Bartnik, 29 id. 306. In Tortorello and Bartnik I discussed the possibility that board-sponsored calls to high school students and recent graduates amounted to targeting a selected group of voters and determined that, because of the great potential for abuse, such practices were not permissible. If, as petitioner claims, extra copies of the VIP materials were sent home with public school children after the last district-wide mailing on November 6, 1990, at least the appearance of improper partisan activity is present. On balance, I find the VIP program and its methods of implementation to have been improper, and direct that it be discontinued (Appeal of Bayly and Rogers, 30 id. ____ [Decision No. 12527, June 6, 1991]).

THE APPEAL IS DISMISSED.

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