Decision No. 14,354

(May 1, 2000)

MILLS, Commissioner.--Petitioners, unsuccessful candidates for the Board of Education of the Williamsville Central School District ("respondent board"), challenge the conduct of the May 1999 school board election. The appeal must be sustained in part.

In the election held on May 18, 1999, six candidates ran for three open seats on respondent board. Respondent Lee Zimmerman and respondents Robert Schwartz and Ann Rohrer, who were incumbents, were elected with 6,782, 6,759 and 6,560 votes, respectively. Petitioners McBride, Binda and McKee received 788, 611 and 450 fewer votes, respectively, than respondent Rohrer. The proposed budget was defeated by 115 votes.

Petitioners state that they were supported by the Amherst Taxpayers Group ("ATG"), whereas the winning candidates were supported by the Williamsville Education Boosters ("WEB"), a group comprised of various parent-teacher associations ("PTAs") and the Williamsville Teachers’ Union. Petitioners claim that once ATG endorsed them, members of WEB and the individual respondents engaged in a negative campaign to sway the election and improperly used school personnel, property and vehicles to produce and distribute partisan campaign literature.

Specifically, petitioners object to three letters written by PTA members and a fourth letter, written by staff at one elementary school, which were distributed to teachers to give directly to students. Petitioners object not only to the alleged partisan and misleading content of the letters, but also to the method of distribution and the use of school property to produce and duplicate the letters. Petitioners also assert that certain teachers threatened students regarding the negative consequences of their election or a budget defeat. In addition, petitioners allege that the WEB candidates engaged in improper electioneering on the day of the election by affixing their campaign slogan to the main entrance of the polling site and displaying it in a school bus window, and by holding a PTA-sponsored barbecue. Finally, petitioners contend that district buses blocked handicapped parking spaces at the polling site, impeding access for disabled voters.

Respondents assert that petitioners fail to rebut the presumption of regularity in the conduct of the election and fail to demonstrate that any alleged irregularities affected the outcome of the election. Respondents also contend that they had no knowledge of and did not actively participate in any alleged partisan activities. Respondents deny that district facilities or resources were used for producing the four letters, but to the extent they were, respondents state that they proactively and appropriately addressed those situations as soon as they were brought to their attention. Finally, respondents assert that the Commissioner lacks jurisdiction regarding accessibility of the polling place to persons with disabilities.

Petitioners failed to submit a reply or memorandum of law to rebut respondent’s proof or affirmative defenses. Petitioners’ request for interim relief was denied on June 29, 1999.

To overturn an election, petitioners must prove improper conduct on the part of respondents, such as a violation of the Education Law or the Commissioner's regulations. Petitioners must also establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Brown, 38 Ed Dept Rep 816, Decision No. 14,151; Appeal of Roberts, 33 id. 601, Decision No. 13,162), were so pervasive that they vitiated the electoral process (Appeal of Roberts, supra; Matter of Gilbert, 20 Ed Dept Rep 174, Decision No. 10,366), or demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Matter of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, aff'd sub nom Capobianco v. Ambach, 112 AD2d 640). Petitioners have the burden of establishing all the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Leman, 38 Ed Dept Rep 683, Decision No. 14,117; Appeal of Robnett, et al., 37 id. 679, Decision No. 13,956).

Petitioners have failed to meet their burden. They present no evidence that the information disseminated actually affected the outcome of the election wherein they lost by a margin of 450, 611 and 788 votes, respectively. They provide no affidavits that anyone who voted against them would have voted differently but for the campaign literature. Mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Ponella, 38 Ed Dept Rep 610, Decision No. 14,103). Nor have they proven that the information disseminated was so pervasive that the electoral process was vitiated. As respondent points out, the four letters petitioners object to were distributed at only three of the district’s thirteen schools, representing only 22% of the district’s school population, and there is no evidence as to how many voters actually received the literature.

However, while a board of education may provide informational material to the voters concerning a proposed budget or proposition (Education Law "1716), the Court of Appeals held in Phillips v. Maurer, 67 NY2d 672, that school district funds may not be used to exhort the electorate to support a particular position. 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 Gravink, 37 Ed Dept Rep 393, Decision No. 13,888; Appeal of Rampello, 37 id. 153, Decision No. 13,830). A board of education must avoid even the appearance of impermissible partisan activity with respect to the conduct of an election (see, e.g., Appeal of Schadtle, 38 Ed Dept Rep 599, Decision No. 14,102; Appeal of Tortorello and Bartnik, 29 id. 306, Decision No. 12,303; Appeal of San Remo Civic Association, Inc., 28 id. 175, Decision No. 12,073). Even indirect support, such as a school board providing 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 v. Kramarsky, 84 Misc.2d 447; Appeal of Saba, 36 Ed Dept Rep 233, Decision No. 13,710; Appeal of Allen II, 32 id. 69, Decision No. 12,761).

Respondents admit that all four letters were distributed to teachers for their anticipated further distribution to students to take home to their parents. Respondents assert that this procedure is consistent with the manner of distribution for all PTA correspondence with parents. However, while PTAs may use a school district’s established means of communicating with parents for informational and non-partisan purposes, they may not do so for partisan purposes (Appeal of Allen II, supra).

In this case, the letters, although separately authored, all exhorted and urged voters to vote against candidates who supported certain positions. The first letter, written by Heim Elementary School PTA President Kyle Swiat, stated in part that "there are 4 school board members already on the board who have been endorsed by a Taxpayers group. Their main focus has been to cut the school budget at any expense . . . [those] 4 School Board Members . . . have given no other suggestions in budget cuts except [to eliminate 130+ teachers, including 10 from Heim]. . . If the Taxpayers group succeeds in gaining just one seat they will hold the majority. This proposal could become a reality. . . We need people on our school Board who are willing to work together to give us the best education at the best possible price. . . ."

In the second letter, Transit Middle School PTA president Judy Stoddard wrote that "should the majority of board members feel the board’s main purpose is to cut your taxes, be prepared for the budget to be dismantled even though it passed by a majority of voters. The new school board can adjust the budget as they see fit as soon as they take office. . . class sizes, nonmandated programs and other resources so critical to our children’s well-being will be adversely affected if we do not vote responsibly. Therefore, I urge parents . . .to vote for those who share your views on issues of quality education. . . ."

The third letter, from Forest Elementary PTA president Linda Visjko, similarly stated that "a local taxpayers group has endorsed four of the current [board] members. They were elected with the promise to cut taxes. . . If a candidate is elected who has similar beliefs as these 4 gentlemen the dynamics of our School Board could change dramatically and we might see 130 teaching positions or non mandated programs eliminated as early as August 1999."

I find that the three PTA letters were designed to solicit favorable votes for the nontaxpayer endorsed candidates, and thus are partisan in nature. Although respondent board maintains that the school principals were unaware of the letters and their means of distribution, respondent board remains ultimately accountable for how district facilities and resources are used and must avoid even the appearance of impermissible partisan activity (Appeal of Miller, 39 Ed Dept Rep 348, Decision No. 14,256). Therefore, I find that respondent board's facilitation of the distribution of these partisan materials constitutes an impermissible use of established district channels of communication to parents (Stern v. Kramarsky, supra; Appeal of Saba, supra; Appeal of Allen II, supra; Appeal of Davis, et al., 30 Ed Dept Rep 366, Decision No. 12,497). While respondent board’s actions do not invalidate the election results, it is directed to refrain from activities that give an appearance of impermissible partisan activity or impropriety. I note that Superintendent Ann B. Fuqua has already conducted an investigation into these activities and has met with district personnel to clarify district responsibilities for the future.

Petitioners’ allegations that the PTA letters were duplicated on school premises using school personnel and equipment lack proof. Respondents’ assertions that the district billed the PTA for the cost of duplicating the letters, and that the flyer by the Forest Elementary staff was duplicated by a staff member, are unrebutted. I have reviewed petitioners’ remaining contentions regarding teacher threats and find that petitioners have failed to meet their burden of proof on this issue as well.

Petitioners allege that the WEB candidates violated Education Law "2031-a, which prohibits electioneering within 100 feet from the building where an election is held, by affixing their campaign slogan to the front of the main entrance of the polling site and by holding a PTA-sponsored barbecue. The WEB candidates adopted a slogan of "Keep the Pride." The phrase "Pride in Involvement" was permanently engraved into the building’s fa"ade two years prior to the election. Thus, I find no merit to petitioners’ claim that the candidates use of the word "pride" in their slogan constituted electioneering.

Furthermore, the holding of a barbecue at the same time as the election does not constitute electioneering, especially where, as respondents assert here, the barbecue information was distributed to all district residents and did not target only those families of students attending district schools who might be inclined to support the budget and certain candidates (Appeal of Santicola, 36 Ed Dept Rep 416, Decision No. 13,765; Appeal of Sowinski, 34 id. 184, Decision No. 13276). Moreover, in this case, the barbecue was actually held in a different building than the polling site.

Finally, respondents admit that a bus driver improperly posted a sign in the back of her bus endorsing certain candidates. Respondents assert that the sign was posted for no more than 20 minutes, and that a disciplinary letter was placed in the driver’s personnel file.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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

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