Appeal of GEORGE R. HUBBARD from actions of the Board of Education of the Greece Central School District regarding a budget vote.

Decision No. 15,374

(March 8, 2006)

Harris Beach LLP, attorneys for respondent, Laura M. Purcell and James A. Spitz, Jr., Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the distribution of certain information by the Board of Education of the Greece Central School District ("respondent") prior to its budget vote in May 2005. The appeal must be dismissed.

Petitioner contends that respondent improperly used district resources to provide false and misleading information to district voters prior to the May 17, 2005 budget vote. Specifically, petitioner contends that respondent published and distributed a booklet entitled "Annual Report, Greece Central School District, April 2005" ("Booklet") that contained incorrect information about per pupil expenditures. He also contends that respondent misled the public in a video program, aired on a local cable channel, about the percent of district students graduating with Regents Diplomas. He further contends that respondent lacked authority to distribute a pamphlet containing an example of a typical property tax bill, and claims it misled voters about the effect of the STAR deduction. Petitioner requests that I order respondent to cease and desist publishing false and misleading information relating to financial, academic and tax claims. He also requests that I instruct respondent to be more diligent in preparing future publications.

Respondent denies any wrongdoing and asserts that petitioner fails to state claims upon which relief may be granted and fails to meet his burden of proof. Respondent also contends that a portion of the petition is untimely.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). Respondent argues that the portion of the petition regarding tax bills is untimely because petitioner did not serve respondent until Tuesday, May 31, 2005, 31 days after petitioner admittedly received the pamphlet on Saturday, April 30, 2005. However, because the 30th day for petitioner to appeal was Monday, May 30, the Memorial Day holiday, and because petitioner commenced the appeal on the next business day, the appeal is timely (General Construction Law �25-a[1]).

Petitioner contends that respondent used false per pupil expenditure data to mislead the public that it controls spending relatively better than other neighboring districts. The Booklet states, "Did you know that the Greece Central School District has the second-lowest per pupil expenditure of the 17 suburban Monroe County school districts?" Petitioner asserts that because the statement does not specify the school year on which it was based, the statement leads the reader to presume it is referring to the then-current 2004-2005 school year when in fact the statement was based on data for the 2003-2004 school year, which was more favorable.

Respondent denies any wrongdoing and explains that the expenditure data in the Booklet was based on its annual Strategic Framework Report, which used the most current information available at the time it was prepared. Moreover, the Booklet states that data are from 2003-2004 and 2004-2005 and that statewide data are from 2002-2003.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope , 40 id. 473, Decision No. 14,530). Petitioner has failed to meet his burden of proof in showing that respondent's display of per pupil expenditures was intended to mislead the public.

Petitioner has similarly failed to meet his burden of proof regarding respondent's video program aired prior to the budget vote. Respondent's video contained the caption: "74% of Students Earned Regents Diplomas in 2004." This information is taken directly from the New York State Report Card, where for the 2003-2004 school year, 744 of 1000 graduates in the district received Regents Diplomas. Petitioner claims that since the Report Card showed the fall enrollment as 1194, 744 Regents graduates really equals only 62%. He claims, therefore, that respondent's use of the word "students" instead of the word "graduates" is purposefully misleading. I disagree. "Student" and "graduate" are often used interchangeably in this context, and the Report Card, which is publicly available, makes the data clear.

Finally, petitioner's claim that respondent lacked authority to include in its information pamphlet a "typical tax bill" referencing a STAR deduction is without merit. Education Law �2022(2-a)(b) requires respondent to include in the school budget notice "a comparison of the tax savings under the basic school tax relief (STAR) exemption . . . and the increase or decrease in school taxes from the prior year, and the resulting net taxpayer savings, for a hypothetical home within the district with a full value of one hundred thousand dollars, under the existing school district budget with such savings under the proposed budget." Petitioner has failed to demonstrate how providing an example of the tax impact of the proposed budget in compliance with Education Law �2022(2-a)(b) is in any way improper, misleading or influential.

A board of education has both the power and duty to inform districts voters about budget issues (Education Law �1716; Appeal of Herloski, 43 Ed Dept Rep 348, Decision No. 15,014). Petitioner has failed to demonstrate that respondent presented misleading information, that respondent intended to mislead the public or that voters would have voted differently but for the alleged misinformation.

THE APPEAL IS DISMISSED.

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