Decision No. 14,666

(December 17, 2001)

MILLS, Commissioner.--Petitioner seeks a reprimand and fine against the Board of Education of the Hewlett-Woodmere Union Free School District ("respondent board") and the removal of its president, Richard Braverman, for actions concerning the district annual election on May 15, 2001. The appeal must be dismissed.

Three propositions were presented to district voters at the May 15, 2001 election: 1) the proposed 2001-02 school budget; 2) a proposition to acquire and install three portable classrooms at the middle school; and 3) a proposition to purchase and install a geothermal heating and cooling system at the high school. In addition, voters were to elect two of five candidates for the board of education. Petitioner, as an organizer of the Citizens Committee of Hewlett-Woodmere ("Citizens Committee"), circulated a position paper to residents endorsing propositions 2 and 3 and candidates Stephanie Gould and Mary DeSetta. The voters approved all three propositions and reelected the two incumbent board members, Mr. Braverman and Ms. Gould.

Petitioner contends that respondents willfully disobeyed a prior Commissioner's decision (Appeal of Boni, 40 Ed Dept Rep ___, Decision No. 14,483) by using school district personnel, property, facilities, equipment, funds and students to distribute partisan literature to exhort the positions of school officials on the propositions and to influence the reelection of respondent Braverman. She alleges that school personnel on school property made telephone calls and distributed flyers to students in order to target voters inclined to support respondent's positions, and that respondents gave the PTA and the district's Ad Hoc Middle School Facilities Committee ("Ad Hoc Committee") use of the district's channel of communication to parents to espouse partisan positions that it was unable to communicate directly. Petitioner contends that respondent Braverman improperly used school resources to distribute campaign flyers to students; sold his endorsement of a controversial plan against leasing a district-owned property for favorable votes; and sanctioned or was aware of telephone calls made to voters falsely representing their allegiance with the Citizens' Committee and stating that it had changed its endorsement in his favor. Petitioner also alleges a violation of Article III, section 1 of the New York State Constitution, prohibiting the giving of gifts, loans of money or property to private individuals and organizations. Petitioner does not challenge the results of the May 15 election, but rather seeks respondent Braverman's removal and a reprimand or fine for respondent board.

Respondents assert that the petition must be dismissed because petitioner failed to obtain jurisdiction over respondent Braverman, failed to meet her burden of demonstrating a legal right to the relief requested, and failed to prove that respondent board or respondent Braverman willfully disobeyed the Commissioner's earlier decision. Respondents also contend that petitioner failed to prove improper conduct by respondent board.

Section 275.8(a) of the Regulations of the Commissioner of Education requires that an appeal to the Commissioner be commenced by personal service of a copy of the petition upon each named respondent or, "if he cannot be found upon diligent search, by delivering and leaving the same at his residence with some person of suitable age and discretion, between six o'clock in the morning and nine o'clock in the evening, or as otherwise directed by the commissioner." Two affidavits of a process server, Stephen J. Edmonson, reveal that he attempted to serve respondent Braverman on Friday, May 25, 2001, at home at 1:27 p.m., and later at his office at 2:49 p.m. In one affidavit, Mr. Edmonson checks boxes indicating that service was evaded and refused at respondent Braverman's business address. However, the affidavit fails to identify who refused or evaded service, whether it was respondent Braverman or someone else at his office, or any circumstances relating to the attempted service. In the other affidavit, Mr. Edmonson checks a box indicating that he posted a copy of the petition "in a conspicuous manner to the address of the person/entity being served" at 7:26 p.m. on May 25. A third affidavit, submitted by Lawrence Siegel, indicates that on May 26, 2001, he served the petition on respondent Braverman at his office "by follow-up mail and tracking."

I agree with respondents that one attempt at service at Mr. Braverman's house and office does not constitute a diligent effort. Moreover, absent evidence of diligent efforts to effect service upon respondent Braverman, service by posting or by mail is ineffectual. Although the regulation permits service of a petition on a person of suitable age and discretion at the respondent"s residence where the respondent cannot be found, there is no authority for alternative service by mail or by posting, absent express authorization from the Commissioner (Application of Balen, 40 Ed Dept Rep ___, Decision No. 14,474; Appeal of Ponella, 38 id. 610, Decision No. 14,103). Since the Commissioner did not authorize alternative service, and no personal service was made upon respondent Braverman, the appeal must be dismissed as to him (Application of Grinnell, 37 Ed Dept Rep 504, Decision No. 13,914). Accordingly, petitioner's request to remove and/or reprimand respondent Braverman for various alleged activities will not be considered.

The remaining claims must also be dismissed on the merits. Petitioner contends that respondent board willfully disobeyed a prior decision in which the Commissioner admonished respondent "to refrain from using selective telephone lists, using statements that support a particular position, and in general engaging in activities that give an appearance of impermissible partisan activity or impropriety in future school district meetings and elections" (Appeal of Boni, supra). Petitioner alleges that the PTA, through its co-presidents, distributed partisan flyers to students to be brought home to their parents. Petitioner also alleges that respondent board similarly gave the Ad Hoc Committee access to the district's established channel of communication to parents.

A board of education has a right to present informational material to the voters concerning a proposed annual budget or other propositions (Education Law "1716, Appeal of Karpoff, Sup. Ct., Albany Co., Special term, Cobb, J., Judgment granted dismissing petition to review, June 29, 2001, n.o.r.; Appeal of Weaver, 28 Ed Dept Rep 183, Decision No. 12,076). However, a school district may disseminate only objective, factual information (Phillips v. Maurer, 67 NY 2d 672; Application of Hennessey, 37 Ed Dept Rep 494, Decision No. 13,911; Appeal of Crawmer, 35 id. 206, Decision No. 13,517). "To 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...of any issue, worthy as it may be" (Stern v. Kramarsky, 84 Misc. 2d 447). While a board of education may disseminate information "reasonably necessary" to educate and inform voters, its use of district resources to distribute materials designed "to exhort the electorate to cast their ballots in support of a particular position advocated by the board" violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Maurer, supra; Appeal of Rampello, 37 Ed Dept Rep 153, Decision No. 13,830; Appeal of Allen, 32 id. 69, Decision No. 12,761). Statements that do not specifically urge a "yes" vote may nevertheless violate the holding in Phillips v. Maurer, supra, if such statements otherwise seek to persuade or convey support for a particular position (Appeal of Karpoff, supra; Appeal of Hubbard, 39 Ed Dept Rep 363, Decision No. 14,259; Appeal of Miller, 39 id. 348, Decision No. 14,256; Appeal of Meyer, et al., 38 id. 285, Decision No. 14,034). Even indirect support, such as a school board giving a PTA access to its established channels of communication with parents so the PTA may espouse a partisan position that the board itself was prohibited from doing directly, has been deemed improper (Stern v. Kramarsky, supra; Appeal of Meyer, et al., supra; Appeal of Saba, 36 Ed Dept Rep 233, Decision No. 13,710; Appeal of Allen, supra).

In the instant case, the PTA distributed five-page flyers consisting of each candidate's biographical information and responses to five questions posed by the PTA:

The candidates' responses were disseminated verbatim. Petitioner contends that the phrasing of the five questions, particularly question four, impermissibly advocates for a position advocated by respondent.

In an appeal to the Commissioner petitioner bears the burden of establishing the facts upon which he or she seeks relief (8 NYCRR "275.10; Appeal of Karpoff, supra). Petitioner has failed to meet her burden in this case. She failed to provide evidence supporting her allegations that respondent board provided selective telephone lists or permitted the use of district resources to produce flyers advocating partisan positions. Hence, there is no evidence that respondent willfully disobeyed my prior decision.

Moreover, petitioner has failed to prove that respondent board engaged in partisan activity. It is undisputed that the PTA distributed information to students. However, the mere distribution of material is not improper per se unless that material seeks to persuade or convey support for a particular position or candidate (Appeal of Allen, supra). I find that the questions posed by the PTA, modeled upon the 1999 New York State PTA Manual, do not constitute improper advocacy. The questions are broad and open-ended, and each candidate's response was distributed without editing, censoring or alteration. I find that the questions served to educate and inform the public about the candidates' positions and qualifications, and do not advocate a particular position.

Petitioner also alleges that a fact sheet produced by the district's Ad Hoc Committee was distributed to students and constituted improper partisan advocacy. The fact sheet in question provided information regarding proposition two, the proposed funding of portable classrooms for the middle school, and included the statement: "Our children must meet the new, higher New York State Standards." Petitioner has again failed to produce any evidence proving that district resources were used to print the fact sheets or that they were distributed to students to bring home. Moreover, I find that use of the word "need" in this context neither advocates a position nor patently exhorts the voters to cast their ballots in favor of proposition two (see, Matter of Gersen v. Mills, Sup. Ct., Albany Co., Special term, Sheridan, J., Judgment granting petition to review, April 21, 2000, n.o.r.).

Finally, I note the Commissioner has no authority to grant the relief petitioner requests: a reprimand or fine of board members (Appeal of Kane, 34 Ed Dept Rep 116, Decision No. 13,251; Appeal of Silano, 33 id. 20, Decision No. 12,961; Appeal of Legatos, 23 id. 10, Decision No. 11,113).

I have considered petitioner's remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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