Appeal of WILLIAM E. MALIHA from action of the Board of Education of the Onteora Central School District regarding the conduct of a special meeting.

Decision No. 14,716

(April 17, 2002)

Shaw & Perelson, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Onteora Central School District ("respondent") with respect to a special district meeting held on June 20, 2001. The appeal must be dismissed.

The June 20^th meeting was held to vote on two bond issues: for improvements to Bennett Elementary School and to repair the roofs at West Hurley Elementary and the Middle-Senior High schools. Petitioner alleges that respondent failed to adequately notify the public of the special meeting and that informational flyers were sent in greater proportion to voters in the areas of the schools affected by the bond proposals. Petitioner claims that the teacher"s union distributed pins to children at Bennett Elementary School that read, "VOTE TO BOND WITH BENNETT." He also alleges that stickers were distributed to students which read "VOTE" and that promotional posters were posted on school bulletin boards. Petitioner also alleges that in the Town of Hurley, 133 fewer votes were cast on the first bond proposition than on the second, evincing an irregularity. Finally, petitioner alleges improprieties in the election due to a discrepancy between the number of voters registered with the Ulster County Board of Elections and the list of registered voters maintained by respondent.

Petitioner requests that I annul the results of the June 20, 2001 referendum, order a recount of the votes cast in that referendum in the Town of Hurley, and discipline the president of the Onteora teacher"s union, respondent"s superintendent and other unnamed teachers and principals for complicity in the alleged improprieties. Finally he requests that I refer this matter to the state"s Attorney General for investigation. Petitioner"s request for interim relief was denied on August 14, 2001.

Respondent denies that it mailed a disproportionate number of pre-election informational materials to towns where the affected schools are located. It affirmatively asserts that all such materials were mailed to residents district-wide. Respondent alleges that legal notices for the special meeting were published four times in two newspapers and three times in a third newspaper circulated within the district. Respondent admits that posters were displayed and stickers distributed by individuals in Bennett Elementary School, but asserts that the message on the stickers only encouraged voting, not a "yes" vote. Respondent claims that it had no prior knowledge of the distribution of "VOTE TO BOND WITH BENNETT" pins to students, and when it became aware of such distribution, made reasonable efforts to collect the pins and stop further distribution.

Respondent also asserts that the petition should be dismissed as untimely, for failure to join necessary parties, and for failure to demonstrate a legal right to the relief requested. Respondent also claims that referral to the Attorney General"s office and the clarification of the number of registered voters in the district are not permissible remedies under Education Law "310.

Initially, I note that petitioner submitted a "Verified Addendum to Petition" and "additional documentation" subsequent to the filing of his petition. Petitioner contends that he did not submit these documents sooner because some of the information contained therein was received pursuant to Freedom of Information Law ("FOIL") requests. The Commissioner, in his discretion, may permit the filing of additional affidavits, exhibits and other supporting papers (8 NYCRR "276.5). Because it"s not clear whether the information was available to petitioner prior to the commencement of his appeal, and it relates to information raised in respondent"s answering papers, I have considered petitioner"s additional submissions.

Respondent claims that because the alleged inadequate and/or inequitable distribution of the district-wide flyer, the poster displays, and distribution of stickers and pins took place before the June 20, 2001 special meeting, the petition, served on July 20, 2001, is untimely. An appeal to the Commissioner must be instituted within 30 days of the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). However, with respect to appeals involving school district elections, the Commissioner has held that it would be unreasonable and detrimental to the efficient resolution of disputes to require that petitioner institute separate appeals with respect to acts comprising a series of events closely related to an election, so as to meet the 30 day requirement set forth in "275.16 (see Appeal of Rampello, 37 Ed Dept Rep 153, Decision No. 13,830). In such circumstances, even though the appeal involves acts occurring more than 30 days from the date the appeal was commenced, I have declined to dismiss the appeal as untimely provided that the appeal was commenced within 30 days of the election (Appeal of Schadtle and Wilcox, 38 Ed Dept Rep 599, Decision No. 14,102). Petitioner"s appeal was commenced within 30 days of the June 20, 2001 vote. Accordingly, I will not dismiss those allegations and exhibits relating to the June 20, 2001 vote, but which occurred more than 30 days before the appeal.

Petitioner"s request for relief in the form of discipline must be dismissed for failure to join necessary parties. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Lawson, 38 Ed Dept Rep 713, Decision No. 14,124; Appeal of Heller, 38 id. 335, Decision No. 14,048). Section 275.8 of the Commissioner's regulations requires that a copy of the petition be personally served upon each named respondent. An individual must also be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Heller, supra). It is the notice of petition which alerts a party to the fact that he or she is required to appear in the appeal and to answer the allegations contained in the petition (8 NYCRR ""275.11, 275.13; Application of the Bd. of Educ. of the Ardsley UFSD, 38 Ed Dept Rep 221, Decision No. 14,019; Appeal of Osterman, 30 id. 290, Decision No. 12,469).

Petitioner requests that I discipline the superintendent, the president of the teacher"s union and other unnamed teachers and principals. The rights of these individuals would be affected if this relief was granted. None of these individuals were named as a respondent in the caption of the petition or in the notice of petition such that they would have been on notice that they were a party to the appeal and required to submit an answer. Thus, I must dismiss those portions of the appeal seeking discipline of these individuals. Respondent also requests that I dismiss the petition for failure to join the teacher"s union. However, union organizations are not subject to the jurisdiction of the Commissioner of Education under Education Law "310 (Appeal of Hoefer, 40 Ed Dept Rep ___, Decision No. 14,664; Appeal of Christe, 40 id. ___, Decision No. 14,514; Appeal of Goldin, 38 id. 317, Decision No. 14,043).

This appeal must also be dismissed on the merits. To overturn an election, petitioner must prove improper conduct on the part of respondent, such as a violation of the Education Law or the Commissioner's regulations. Petitioner 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 fairness of 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 nomCapobianco v. Ambach, 112 AD2d 640). In an appeal before the Commissioner, petitioner bears the burden of establishing the facts upon which relief is sought (8 NYCRR "275.10; Appeal of Boni, 40 Ed Dept Rep ___, Decision No. 14,483).

Petitioner presents no evidence that any actions by respondent actually affected the outcome of the vote. The first bond issue passed by 117 votes and the second bond issue by 571 votes. Petitioner provides no affidavits that anyone who voted for the propositions would have voted differently but for any irregularity alleged by respondent (Appeal of Boni, supra; Appeal of Krantz, 38 Ed Dept Rep 485, Decision No. 14,077). Mere speculation as to the possible existence of irregularities is an insufficient basis to annul election results (Appeal of Boni, supra; Appeal of McBride, et al., 39 Ed Dept Rep 702, Decision No. 14,354). Petitioner has also failed to demonstrate that the alleged irregularities were so pervasive that they vitiated the electoral process; nor has he demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.

Petitioner claims that the district-wide informational mailing was intentionally directed to those sections of the district more likely to vote for the bond propositions. Since the determination of whether a school district engaged in targeting is a question of fact dependent upon the circumstances of each case, any distribution of election information on a less than district-wide basis does not constitute impermissible targeting perse(Appeal of Schadtle and Wilcox, supra). The superintendent states in his affidavit that the flyers were issued through a procedure consistently used in district-wide mailings, and that an adequate number of flyers for all households on the district"s distribution list were delivered to the post office. According to the distribution report, some 11,429 pieces were mailed. Petitioner submits two affidavits from residents who did not receive the mailing. Even if respondent failed to provide an adequate number of flyers to the post office there is no evidence that respondent deliberately sought to limit its distribution to any one neighborhood or segment of the community nor is there any proof that the result of the election was affected.

In addition, respondent presented proof that the four legal notices required by statute were published in a timely fashion in two newspapers circulated within the district. A third newspaper circulated in the district also carried three of the notices. Thus, I conclude that all notices required by law were properly made (see Education Law "" 2004 and 2007).

With regard to the allegations of electioneering, petitioner provides no evidence that any partisan materials were produced or sanctioned by respondent. Respondent admits that "Vote to Bond with Bennett" pins were distributed to students, but not with its knowledge or approval. Respondent further claims that it attempted to collect the pins when it became aware of their distribution. Although respondent maintains that the school principal was unaware of the distribution of the partisan pins, respondent remains ultimately accountable for how district facilities and resources are used and must avoid even the appearance of impermissible partisan activity (Appeal of McBride,supra; Appeal of Miller, 39 Ed Dept Rep 348, Decision No. 14256). Therefore, I urge respondent to review its election procedures to prevent a recurrence of this type of activity.

The "vote" stickers, however, may be interpreted merely as an expression of the importance of participation by eligible voters, in an attempt to increase general voter turnout. Previous Commissioner"s decisions have permitted the encouragement of voter participation (Appeal of Hubbard, 39 Ed Dept Rep 363, Decision No. 14,259; Appeal of Miller, 39 id. 348, Decision No. 14,256). Finally, there is no evidence in the record to indicate that the election posters were in any way improper.

Petitioner alleges that a discrepancy between the number of voters registered with the Ulster County Board of Elections and the list of registered voters maintained by respondent provides further evidence that respondent failed to provide adequate notice of the special election. However, petitioner offers nothing more than speculation on this point, and as such has failed to meet his burden of proof on this issue (see Appeal of Wayne, 39 Ed Dept Rep 518, Decision No. 14,298).

Petitioner also claims that, according to respondent"s records, district residents from the Town of Hurley cast 133 fewer votes for Proposition 1 than the total votes cast for Proposition 2. All other voting areas recorded differences of 10 or fewer votes between the total votes cast for Proposition 1 or Proposition 2. Petitioner contends that this represents an aberration in voting tabulations. However, he offers no evidence for this "aberration." As previous Commissioner"s decisions have noted, speculation is not a basis to overturn an election (Appeal of Wayne, supra).

Petitioner has failed to establish that any voter would have voted differently but for the failure to receive a mailing or any other alleged irregularity. Nor has he shown a laxity in adherence to the Education Law or pervasive irregularities vitiating the fundamental fairness of the election. Accordingly, the appeal must be dismissed.

Finally, after careful review of the record, I do not find evidence sufficient to support a referral to the Attorney General and decline to do so.

THE APPEAL IS DISMISSED.

END OF FILE

---