MILLS, Commissioner.--Petitioner appeals the alleged misuse of school district funds by respondent to influence district residents to vote in favor of the school district budget and two propositions presented to the voters on May 18, 1999. The appeal must be sustained in part.

Respondent produced a videotape entitled "Greece Central School District 1999-2000 Budget Presentation." Respondent spent $5,202.50 of school district funds to produce the video, not including the pro-rated salaries of respondent's employees who produced and appeared in the video. This video was shown on public access Channel 12 on four dates in May 1999 and was used by respondent in budget presentations throughout the district. The video was also available to the public at the Town of Greece public libraries.

Petitioner contends that respondent illegally used public funds to produce a video which exhorted the electorate to vote in favor of its budget proposal and two propositions, and that the video contained misrepresentations. Petitioner requests that I order respondent to cease using public funds to persuade residents to vote in favor of its proposed budgets and propositions; to take a more active role to ensure that public funds are not being used for this purpose; and to establish a policy relating to publicity projects for budget votes. Petitioner also asks that I admonish respondent for failing to ensure that public funds were being properly used.

Respondent denies that the video is improper, and alleges that petitioner has failed to state a legally sufficient basis for the relief requested.

Before reaching the merits, I will address a procedural issue. Petitioner contends that respondent presented new assertions in its memorandum of law which were not part of the responsive pleadings, namely that the video presented legitimate purposes for proposed budget expenditures and displayed for public scrutiny the facts upon which respondent made judgements that various budgetary items were necessary. A memorandum of law may not be used to belatedly add new assertions which are not part of the pleadings (Appeal of Coombs and Baker, et al., 34 Ed Dept Rep 253, Decision No. 13,301). However, in this case, I do not find that respondent's memorandum of law contains new assertions. The memorandum of law explicates respondent's denial that the video is persuasive and slanted campaigning, which respondent asserted in its answer papers.

Turning to the merits, in Phillips v. Maurer, 67 NY2d 672, the Court of Appeals held that a board of education may disseminate information "reasonably necessary" to educate and inform voters about an annual budget or propositions, but that a board of education may not disseminate information, at taxpayers' expense, designed "to exhort the electorate to cast their ballots in support of a particular position advocated by the board." (Education Law "1716; Appeal of Rampello, 37 Ed Dept Rep 153, Decision No. 13,830; Appeal of Allen, 32 Id. 69, Decision No. 12,761). Respondent contends that the holding in Phillips v. Maurer must be limited to situations in which a board of education uses the words "vote yes," or a variant of these words. However, I do not concur with respondent's rather constricted interpretation of the Court’s holding in that case. While the Court of Appeals found that the board of education in Phillips v. Maurer specifically (and impermissibly) urged a "yes" vote, the Court also recognized, citing Stern v. Kramarsy, 84 Misc2d 447, that "[t]o educate, to inform, to advocate or to promote voting on any issue may be undertaken, provided it is not to persuade nor to convey favoritism, partisanship, partiality, approval or disapproval by a State agency of any issue, worthy as it may be." Accordingly, 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 Meyer, 38 Ed Dept Rep 285, Decision No. 14,034; Appeal of Gravink, 37 id. 393, Decision No. 13,888).

I find that the video impermissibly exhorts the electorate to support respondent's budget proposal and propositions. In the video, respondent's superintendent thanks the community for supporting last year's budget and states: "For the long term future of Greece, for the benefit of business stability and economic development, and for the renewal of our young families moving into our town, I believe that we must continue to pass school budgets and continue the positive momentum we now are experiencing." In referring to various initiatives to be funded by the budget, the superintendent also makes the following statements: "The major improvements we are asking you to support include. . . ." "We are also seeking your support for two propositions." "Through your input and with your support we will make even more improvements in our instructional program, educational services and buildings." "In the new budget, we're asking for the community to support upgrading all of our middle school technology labs." The superintendent additionally interviews a principal in one of respondent's buildings who states, "If we pass this budget, which we do hope we do, we will have window replacement on the western side of the building, and we would be looking forward to that." Asking the community to support the budget proposal and propositions is tantamount to asking for a "yes" vote. These statements were not reasonably necessary to inform and educate the public about the proposed budget and propositions but instead improperly exhorted district residents to vote in favor of the budget and propositions in violation of the Court of Appeals' holding in Phillips v. Maurer.

In the video, the superintendent also characterizes the extent of tax increases, resulting from passing the budget and propositions. He states that the, "The budget will result in a tax increase of only 1.9 percent. The propositions will result in a tax increase of only 1.5 percent"(Emphasis added). While it is proper to state the percentage increase as a fact, it is not proper to characterize the percentage increase as "only" a given percentage. Such characterization seeks to persuade residents to vote in favor of the budget and propositions.

Petitioner claims that the slogan that appears at the beginning and end of the video, "Our Children, Our Schools, Our Future - Vote May 18" is improper because the viewer will link it with other portions of the video that are exhortative. I do not agree. The slogan could reasonably be interpreted to encourage voting in the upcoming election, while taking no partisan position on how residents should vote. This is permitted under Phillips v. Maurer.

Petitioner further contends that the video misrepresents the facts by implying that a driveway project at Greece Olympia High School would be paid for by one of the propositions, when in fact funds had previously been allocated for this purpose. The video very briefly shows a man on a piece of earth moving equipment as a backdrop to narration about the proposition that would fund school repairs and renovations. The video does not represent that the proposition would fund the driveway construction project at Greece Olympia High School. The burden of proof in an appeal to the Commissioner rests with the petitioner (8 NYCRR "275.10; Appeal of Gravink, supra). In this instance, petitioner's claim of misrepresentation is speculative and not adequately supported by the record.

While respondent may have been well intentioned, it has violated the Court of Appeals’ holding in Phillips v. Maurer. I admonish respondent to abide by this holding and refrain from using district funds to advocate a partisan position with respect to matters that are the subject of a school district vote.

In light of the foregoing disposition, I need not address the parties' remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent refrain from using district funds to advocate a partisan position with respect to matters that are the subject of a school district vote, in accordance with this decision.

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