Appeal of RANDALL T. WALKER from action of the Board of Education of the Honeoye Central School District, Dr. R. Tim Marks, Superintendent, and Donna Klemmann, District Clerk, regarding a budget vote.

Decision No. 14,715

(April 12, 2002)

Harter, Secrest & Emery, LLP, attorneys for respondent, Matthew D. Brown, Esq., of counsel

Mills, Commissioner.--Petitioner, a resident and taxpayer of the Honeoye Central School District, challenges certain procedures in connection with a budget vote held on June 28, 2001. He also seeks the removal of Superintendent R. Tim Marks. The appeal must be dismissed.

In early 2001, respondent board proposed a budget of $12,386,925 for the 2001-2002 school year. The board published annual meeting notices beginning on March 14, 2001, sent out required legal notices to taxpayers during May, conducted a budget hearing on May 3, 2001, and conducted the annual meeting on May 15, 2001, at which time the budget was defeated.

Thereafter, the board on June 12 and June 22 published a notice of a special meeting and budget vote to be conducted on June 28, 2001, and conducted a budget hearing on June 21. At the June 28 special meeting, the budget was again defeated.

The record indicates that the budgets submitted on May 15 and June 28 were not identical. It appears that $50,000 was removed from the program component of the first budget and added to the capital component of the second budget. Aside from this single difference, amounting to a shift of approximately four-tenths of one percent of proposed funding, the budgets were identical. Following the defeat of the June 28 budget, the board adopted a contingency budget of $12,131,535.

Petitioner commenced this appeal on July 27, 2001, and sought a stay to prevent the board of education from implementing the contingency budget. The stay was denied on August 20, 2001.

Petitioner raises a number of complaints about respondents" actions leading up to the June 28 vote. His primary complaint is that the district did not make copies of the correct (i.e., second) budget available to taxpayers prior to, or at, the special district meeting. He also alleges that there was a $53,000 error in the projected contingency budget in the school district budget notice for the June 28 meeting. He asks that I annul the budget vote, and remove the superintendent for failure to follow applicable statutes and to assure that the taxpayers were voting on a correct budget. However, the notice of petition used by petitioner fails to comply with 8 NYCRR "277.1, in that it does not contain the specific language required in proceedings to remove school officers. The petition is therefore dismissed as to removal.

Nor will I annul the budget vote results. To invalidate the results of a school district election, a petitioner must establish not only that irregularities occurred, but also 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 Meyer, et al., 38 Ed Dept Rep 285; Appeal of Santicola, 36 id. 416), were so pervasive that they vitiated the electoral process (Appeal of Roberts, 33 Ed Dept Rep 601; Matter of Gilbert, 20 id. 174), 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 subnom, 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). Petitioner has the burden of establishing all the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Gravink, 37 Ed Dept Rep 393, Decision No. 13,888).

Petitioner has submitted no affidavit from any voter, including himself, stating that the voter would have voted differently if he or she knew that $50,000 had been removed from the program component of the original budget and added to the capital component of the second budget, or about the $53,000 in the projected contingency budget. Neither party has advised what the final vote on the June 28 budget was, and it would be impossible to annul it based on the record before me. Indeed, it has been held that where a petitioner seeks to annul a budget vote in which the budget was defeated, the appeal is moot (Appeal of Meyer and Mittelstaedt, 40 Ed Dept Rep 34, Decision No. 14,413; Appeal of Schuler, 37 id., 512, Decision No. 13,915) at least where, as here, there are no allegations of illegal activity as part of an ongoing pattern of wrongdoing (cf. Appeal of Baker, 39 Ed Dept Rep 690, Decision No. 14,350; Appeal of Schadtle, 38 id. 599, Decision No. 14,102). Therefore I find that petitioner has failed to meet his burden so as to require that the results of the special meeting be set aside.

I must comment, however, on the district"s failure to make a true and correct copy of the budget available pursuant to statute prior to, and at, the special district meeting. Petitioner claims that the board waited from May 15, the date of the first district meeting, until June 23 to propose a new budget vote. However, the record indicates that the notice for the special district meeting was dated June 8, and was already published for the first time on June 12. In either event, while respondents claim that they were unable to print numerous copies of the slightly modified budget within these time constraints, it would appear that respondents could have provided some sort of written notice that there was a change of $50,000 from the first budget proposal to the second, even if copies of the original May 15 budget had to be utilized. I strongly urge respondents to make every effort to comply with the express terms of the Education Law and to provide up-to- date, accurate information to the electorate.

In view of this disposition, it is not necessary to review the parties" other claims, which I find without merit.

THE APPEAL IS DISMISSED.

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