Decision No. 12,793

(September 1, 1992)

Ronald J. Rosenberg, Esq., attorney for petitioners

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger and Reich, Esqs., attorneys

for respondents, Lawrence W. Reich, Esq., of counsel

SOBOL, Commissioner.--Petitioners, unsuccessful candidates for election to the Board of Education of the Half Hollow Hills Central School District, appeal from the results of the 1991 annual election and budget vote. They request that the results be annulled and a new vote ordered. They also request that I hold respondent board members personally liable for certain alleged improper expenditures made in connection with the annual district meeting. The appeal must be dismissed.

Petitioners contend that the election and budget vote must be set aside. They base their claim on respondents' distribution of flyers prior to the annual meeting which they alleged contained false information about the tax rate that would purportedly result from approval of the budget. Respondents deny that the flyers contained false or misleading information and contend that petitioners have failed to establish that respondents' actions affected the outcome of the election and budget vote.

Before turning to the merits, I will address petitioners' request for class status in initiating this appeal. Petitioners seek to bring this appeal on behalf of "other residents, taxpayers and parents" residing in respondents' district. A class appeal is permitted only where the class of individuals is so numerous that joinder of all members is impracticable and where all questions of law and fact are common to all members of the class (8 NYCRR 275.2[a]). Prior decisions of the Commissioner have held that where petitioners fail to set forth the number of individuals that they seek to represent, class status will not be permitted (Appeal of the National Association for the Advancement of Colored People (NAACP), Schenectady Branch, et al., 30 Ed Dept Rep 187; Appeal of Maynard, 28 id. 198; Appeal of Gross, 25 id. 382). Although petitioners describe the class of individuals they wish to represent, they do not indicate the number of individuals in the proposed class. Consequently, there is no basis to determine that joinder is impracticable. Therefore, class status is denied (See, Appeal of the National Association for the Advancement of Colored People (NAACP), Schenectady Branch, et al., supra).

Petitioners allege that, prior to the district's annual meeting, respondents distributed flyers which indicated that, under the proposed budget, the tax rate would be $63.96 per $100 of assessed property value in the Town of Huntington and $50.94 per $100 of assessed property value in the Town of Babylon. The proposed rates reflected an increase of 2.95% and 11.17%, respectively. The figures were based on anticipated reductions in State aid and in local expenditures. The board of education met again on June 10, 1991 and revised the figures to reflect a tax rate of $61.62 per $100 assessed value in Huntington and $48.78 per $100 assessed value in Babylon. Respondents assert that the revisions were based upon an anticipated partial restoration of State aid and further reductions in local expenditures. Subsequent to the meeting, respondents distributed a second flyer to publicize the revised tax rates and inform the voters that the rates reflected a reduction from the prior year in taxes for the Town of Huntington and a reduction in the tax rate published in the earlier flyers for the Town of Babylon. On June 19, 1991, the voters approved the proposed budget by a vote of 2,501 to 1,889. Respondents Herz and Sais were re-elected to office.

Petitioners contend that respondents had no basis to anticipate restoration of State aid and that, therefore, respondents improperly revised the tax rate. Accordingly, petitioners argue that the revision of the initial rates and subsequent distribution of the revised rates was fraudulent. Petitioners further contend that, by distributing fraudulent information, respondents attempted to exhort the voters, in violation of Phillips v. Maurer (67 NY2d 672), to approve the proposed budget and to re-elect incumbent respondents Herz and Sais. Petitioners allege that the distribution of the allegedly fraudulent information unfairly influenced the voters and contend, therefore, that the results of the election and budget vote must be overturned.

Respondents allege that the June 10, 1991 publication revising the tax rates was reasonable based upon the information it received from its professional staff. Respondents indicate that they anticipated legislation which would partially restore State aid, despite a prior veto by the Governor, and that they also proposed further reduction of local expenditures. Respondents also contend that the flyers were purely informational, did not solicit affirmative votes and, thus, did not violate Phillips v. Maurer, supra.

Subsequent to filing the pleadings in this appeal, respondents submitted documentation indicating the actual tax rates set for the 1991-92 school year. The actual tax rates per $100 assessed value for the Towns of Huntington and Babylon respectively are $61.62 and $48.79 -- almost identical to the anticipated rates arrived at by respondents at the June 10 board meeting and later distributed to the voters. Petitioners do not dispute the facts contained in respondents' submission. Consequently, petitioners' assertions that the proposed tax rates contained in the flyer distributed to the voters were false and fraudulent are without basis. Petitioners, therefore, have failed to state any claim on which to grant the relief requested.

THE APPEAL IS DISMISSED.

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