Decision No. 14,593

(July 9, 2001)

MILLS, Commissioner.--Petitioners challenge certain expenditures and actions by the Board of Education of the Ballston Spa Central School District ("respondent") relating to a referendum to purchase land to build a new transportation facility. The appeal must be dismissed.

At a special district meeting held March 13, 2001, voters of respondent"s district approved plans to purchase land to build a new transportation facility. In advance of the referendum, the district presented information pertaining to the proposal in two publications, the March 2001 issue of the Ballston Spa Central School District Reader and a flyer entitled On the Move for Better Student Services. Petitioners contend that these publications improperly promoted the transportation facility project and were circulated to district residents at taxpayer expense both in advance of the election and at polling places. Petitioners also claim that respondent"s superintendent of schools violated the Election Law by allowing a local television station to interview him at a polling site. In addition, petitioners claim that the district rescheduled its kindergarten registration and parent orientation program to coincide with the date of the referendum and that district personnel urged parents attending the orientation to vote in favor of the new transportation facility. Petitioners do not supply any affidavits to support their allegations and it is unclear from the record whether they were present at the kindergarten orientation. For relief, petitioners request that I "publicly reprimand and censure" respondent and seek assurance that respondent will not violate the law in the future.

Respondent admits that both publications were circulated to district residents in advance of the election and were available at polling places, but asserts that they contain only appropriate factual material. Respondent denies that it rescheduled its kindergarten orientation program and affirmatively alleges that the program was conducted on March 8, 2001, as originally scheduled by the district, and that district staff did not comment on the proposed transportation facility during the program. Respondent also alleges that the petition was improperly served on Deborah Dugan, the receptionist at its district offices, who was never designated by the board to accept service. Finally, respondent contends that the petition is untimely to the extent that it challenges the distribution of either publication or conduct that occurred at the district"s kindergarten orientation program.

The appeal must be dismissed on procedural grounds. If a school district is named as a party respondent, service upon such school district must be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR "275.8[a]). Respondent submits an affidavit from Deborah Dugan, the receptionist at its district office who states that on April 12, 2001, a woman came into the office with a large manilla envelope looking for John Duffy, the district clerk. The woman did not state the nature of her business or explain what was in the envelope. After Ms. Dugan was unable to reach Mr. Duffy, the woman left the envelope, which apparently contained the petition, with Ms. Dugan. Ms. Dugan asserts that she was never authorized to accept service on behalf of respondent and did not know that the woman was attempting service of legal papers. Respondent also submits an affidavit from District Clerk John Duffy, who states that he was not personally served with the petition, but instead, received it from his secretary who had received it from Ms. Dugan. Although the affidavit of service submitted with the petition indicates that the petition was personally served on John Duffy, petitioners have not submitted an affidavit to refute Mr. Duffy"s and Ms. Dugan"s assertions. Based on petitioners" failure to refute respondent"s allegations, I find that the appeal must be dismissed for failure to effectuate proper service (Appeal of Lilker, 39 Ed Dept Rep 614, Decision No. 14,328; Appeal of Ponella, 38 id. 610, Decision No. 14,310).

I also note that the appeal must be dismissed to the extent that petitioners request that I "publicly reprimand and censure" respondent. I do not have authority to censure or reprimand a board of education (see, Appeal of Sherwood, 39 Ed Dept Rep 791, Decision No. 14,382; Appeal of Kozak, 39 id. 278, Decision No. 14,237).

Although I decline to reach the merits of this appeal, I note that while a board of education may disseminate information "reasonably necessary" to educate and inform voters about an annual budget or propositions, school district funds may not be used to exhort the electorate to support a particular position (Matter of Phillips v. Maurer, 67 NY2d 672; Appeal of Hubbard, 39 Ed Dept Rep 363, Decision No. 14,259). 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 Hubbard, supra). After reviewing the record I find nothing in respondent"s literature that constitutes improper advocacy.

In light of this disposition, I decline to address the parties" remaining contentions.

THE APPEAL IS DISMISSED.

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