Decision No. 14,676

(December 21, 2001)

MILLS, Commissioner.--Petitioners appeal various actions of the Board of Education of the City School District of the City of Corning ("respondent board") concerning a special district election held on June 19, 2001. The appeal must be dismissed.

Over a period of several years, respondent board considered various options to address its facilities" needs. In 2000, respondent board appointed a Facilities Study Committee ("the committee") to identify and evaluate options to meet those needs. On July 26, 2000, the committee recommended a facilities plan known as "Option 2" which involved, among other things, building a new high school in the Town of Erwin, converting two high schools to middle schools, closing one middle school, converting another to an elementary school and renovating existing elementary schools. On October 4, 2000, respondent board directed its superintendent to formally prepare a facilities proposal based on "Option 2" for its approval and a subsequent public referendum. On May 2, 2001, respondent board approved the facilities plan presented by its superintendent and voted to hold a special district election on June 19, 2001 to seek voter approval. The proposition approved by respondent board provided, among other things, for the lease for up to 30 years of a new high school to be located on a 65 acre campus in the Town of Erwin at an annual maximum cost not to exceed $5,500,000; reconstruction of various school district buildings at an estimated cost of $15,206,900 to be paid for by the issuance of bonds; and the sale of the Northside Blodgett Middle School for not less than $1,000,000.

On May 7, 2001, petitioner Huber, apparently acting on behalf of the Corning Area United Taxpayers Association, submitted to the district clerk 45 petitions containing 308 signatures requesting that respondent board place an alternate proposition on the ballot. The alternate proposition provided:

The matter was placed on the agenda for respondent board"s next regularly scheduled meeting on May 16, 2001.

At the May 16, 2001 meeting, respondent board voted not to place the alternate proposition on the ballot on the advice of its counsel that there was insufficient time to satisfy the public notice requirements under the Education Law and that competing propositions should not be placed on the same ballot. Petitioners then commenced this appeal on June 11, 2001 seeking, among other things, a stay of the June 19, 2001 special district meeting. Petitioners" request for interim relief was denied on June 18, 2001. District voters approved respondent board"s proposition at the June 19, 2001 special district meeting.

Petitioners contend that respondent board"s refusal to place the alternate proposition on the ballot was improper; that respondent board has failed to establish policies and procedures governing the submission of propositions as required by Education Law "2035; that school facilities and staff were improperly used to promote respondent board"s proposition; and that respondent board did not provide sufficient information to allow voters to make an informed decision on the proposition. For relief, petitioners request that I order respondent board to call a special meeting to submit their proposition to district voters; that I reprimand respondent board for failing to adopt procedures governing the submission of propositions and for allowing its facilities to be used to promote its proposition; and that I direct respondent board to fully inform the voters of details pertaining to the proposed lease.

Respondents contend, among other things, that I lack authority to reprimand a board of education or provide advisory opinions; that petitioners" request for a special district meeting and for clarification of the terms of the lease are moot; that petitioners were not prejudiced by respondent board"s failure to adopt policies and procedures governing the submission of propositions; that respondent board properly refused to submit the alternate proposition to district voters and that petitioners have failed to establish that respondents improperly promoted the proposition or allowed district facilities to be used for such purpose.

At the outset, I note that respondents object to portions of petitioners" reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Karpoff, et al., 40 Ed Dept Rep , Decision No. 14,527; Appeal of Krantz, 38 id. 485, Decision No. 14,077). Therefore, while I have reviewed petitioners" submission, I have not considered those portions of the reply containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal is moot in part. It is well settled that the Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Jaski, 40 Ed Dept Rep 154, Decision No. 14,446, Appeal of Brown, 39 id. 341, Decision No. 14,254). Although the passage of the referendum on June 19, 2001 has rendered the petition moot to the extent that petitioners seek to stay the special district meeting, I do not otherwise find the petition moot. Petitioners contend, among other things, that district voters were deprived of the opportunity to consider their bond proposal as an alternative to respondent board"s proposal and that respondent board improperly allowed its facilities to be used to promote its proposition. If I were to find that respondent board improperly rejected petitioners" petition or engaged in electioneering that affected the outcome of the election, I could invalidate the election results and order respondent board to hold another special district meeting. There is nothing in the record to suggest that respondent board has actually implemented the plan approved by district voters, circumstances that would, at the very least, render moot petitioners" request that district voters be given an opportunity to consider the alternate proposal. Because I find that there is meaningful relief available, I decline to dismiss the remainder of petitioners" claims as moot.

It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in appeals brought pursuant to Education Law "310 (Appeal of Weiss, 39 Ed Dept Rep 69, Decision No. 14,176; Appeal of Lambert, 37 id. 599, Decision No. 13,937). However, the petition alleges that respondents have violated the law by allowing school district property to be used to promote the proposition. Although, I have no authority to "reprimand" respondents, if I were to find petitioners" claim meritorious, I could instruct respondents to cease such activity at all future district budget and proposition votes. Accordingly, whether or not respondents engaged in the conduct alleged is a justiciable issue, and I find no basis to dismiss that claim as improperly seeking an advisory opinion or declaratory ruling (see, Appeal of Eckert, 40 Ed Dept Rep ___, Decision No. 14,520).

However, the appeal must be dismissed on the merits. In an appeal to the Commissioner, petitioner bears the burden of establishing all of the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Boiko, 40 Ed Dept Rep ___, Decision No. 14,513; Appeal of Taylor, 39 id. 368, Decision No. 14,261; Appeal of Trombley, 39 id. 115, Decision No. 14,189) and to demonstrate a clear legal right to the relief requested (Appeal of Boiko, supra; Appeal of Taylor, supra; Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120). None of petitioners' claims satisfy this standard.

To invalidate the results of a school district election, petitioners must establish not only that an irregularity occurred, but that the irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Goldin, 40 Ed Dept Rep ___, Decision No. 14,573; Appeal ofLawson, 38 id. 713, Decision No. 14,124; Appeal of Chechek, supra), were so pervasive that they vitiated the electoral process (Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162; Matter of Gilbert, 20 id. 174, Decision No. 10,366), or demonstrate 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 and Bd. of Ed., Glen Cove City School District, 112 AD2d 640). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Goldman, 35 Ed Dept Rep 126, Decision No. 13,487; Appeal of Roberts, supra).

Petitioners have failed to demonstrate that respondents did not adequately apprise voters about the terms of the proposed lease of the high school building. Where a vote is on a capital project and the financing thereof, the proof must contain affidavits or statements from individuals who voted in favor of the proposition that their vote would have been otherwise but for the alleged misconduct (Appeal of Krantz, 38 Ed Dept Rep 485, Decision No. 14,077). Petitioners have failed to submit a single affidavit from a district voter stating that the lack of additional explanatory information affected their vote.

I also find that petitioners have not sustained their burden of proof with regard to their remaining claims of election improprieties. Although petitioners allege a number of instances of improper activity, their assertions consist of little more than hearsay or conclusory allegations. As to their claim that respondents improperly allowed access to district facilities, respondents explain that they allowed "all factions supporting any educational plan...reasonable opportunity" to videotape the district"s facilities to "present their case" to district voters, an opportunity which petitioner Huber"s organization availed itself. Although petitioners allege that district facilities were used to produce an advertisement urging support of respondent board"s proposition, they fail to supply any proof that district officials actively participated in that effort, or expended district funds by allowing other organizations access to its facilities. Because the sufficiency and condition of the district"s facilities were obviously relevant to voters" decision whether to support the proposition, I find respondent acted reasonably by allowing all organizations access to videotape its facilities (cf, Appeal of Karpoff, et al., 40 Ed Dept Rep , Decision No. 14,527, aff'd Karpoff v. Mills, Sup Ct, Albany Co., August 1, 2001, Cobb J.). Moreover, petitioners have failed to demonstrate that respondents" actions affected the outcome of the election.

Petitioners have similarly failed to establish any grounds for relief on their claim that district employees used school district mailboxes to solicit staff to support respondent board"s proposition. It is well settled that while a board of education may distribute factual information regarding a vote or an election, the use of district resources to distribute materials designed to solicit favorable votes violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Mauer, 67 NY2d 672 [1986]; Appeal of Lawson, 36 Ed Dept Rep 450, Decision No. 13,774; Appeal of Saba, 36 id. 233, Decision No. 13,710). Even indirect support, such as a school board giving a PTA access to its established channel 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 [1975]; Appeal of Lawson, supra; Appeal of Saba, supra).

From the record, it appears that members of the Corning Teachers" Association, the recognized bargaining representative of the district"s teachers, distributed a flyer through teacher mailboxes soliciting teachers to participate in a television commercial it planned to film supporting the proposition. Respondent superintendent explains that because the Corning Teachers" Association is the recognized bargaining representative of its teachers, it has access to school mailboxes to communicate with its members. There is no evidence in the record that respondents knew about the flyer in advance or sanctioned its distribution. Nor is there any evidence that the flyer was distributed at school district expense. Under these circumstances, I find that petitioners have not proven that respondents engaged in any partisan activities sufficient to overturn the election (Appeal of Van Allen, 38 Ed Dept Rep 701, Decision No. 14,122).

Nor have petitioners established any right to relief with respect to their claim that respondent board has failed to establish policies and procedures governing the submission of propositions by district residents as required by Education Law "2035(2). Although respondent board concedes that it does not have such policies in place, petitioners have failed to establish that this irregularity prevented it from submitting its proposition to district voters (Appeal of Nicoletti, 21 Ed Dept Rep 38, Decision No. 10,590). However, I remind respondent board of its obligation to establish such policies and procedures as required by Education Law "2035(2).

Finally, I do not find that respondent board acted arbitrarily in declining to place petitioners" alternate proposition on the ballot. A board of education may not be compelled to place before the voters at an annual or special district meeting all propositions submitted in conformity with Education Law "2035, regardless of ambiguity, feasibility, or difficulty in interpreting election results when conflicting matters are voted on simultaneously (see, Appeal of McDougall, et al., 37 Ed Dept Rep 611, Decision No. 13,941; Appeal of Martin, 32 id. 567, Decision No. 12,915). A board must exercise its independent judgment to ensure that the will of the voters can be ascertained (Appeal of Martin, supra). Placing two propositions before the electorate, each proposing a different solution and appropriation to address the district"s facilities needs would be confusing (see, Appeal of Martin, supra; 27 Op. State Compt. 138). Moreover, petitioners have failed to establish that their alternate proposition was based on a concrete, detailed plan that represented a feasible option to address the district"s facilities needs. The alternate proposition contained only the barest outline for a plan that would involve "reconstruction of various school district buildings" for not more than $30,000,000. Finally, a board of education is required to provide voters with 45 days notice of a proposition involving among other things, an addition to a school building (Education Law ""416[3], 2004, 2009 and 2601-a). Petitioners did not submit their proposition to respondent board until May 7, 2001, leaving respondent board with insufficient time to comply with these notice requirements. Although it is not clear from the record whether the alternate proposition involved an addition to any school building, I do find that respondent board acted arbitrarily in concluding that the 45 notice provision was applicable, given petitioners" failure to provide the details of its proposal. Under these circumstances, I find that respondent board properly rejected petitioners" proposition.

I have examined petitioners" remaining claims and find them to be without merit.

THE APPEAL IS DISMISSED.

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