Appeal of LAWRENCE LOMBARDO from action of the Board of Education of the Lynbrook Union Free School District regarding capital reserve fund propositions.

Decision No. 15,508

(December 22, 2006)

Ehrlich, Frazer & Feldman, attorneys for respondent, Kevin G. McMorrow, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges as improper electioneering certain actions of the Board of Education of the Lynbrook Union Free School District (“respondent”) relating to two capital reserve fund propositions.  The appeal must be dismissed.

On May 15, 2001, district voters approved a proposition to establish a $5 million capital reserve fund (the “reserve fund”), pursuant to Education Law §3651, for “district wide improvements.”  The probable term of the reserve fund was five years, ending on June 30, 2006.

On February 15, 2006, as a result of overfunding the reserve fund, respondent authorized a transfer of $3,345,855.23 from the reserve fund to the general fund’s unappropriated fund balance.  Respondent left $1,061,987 in the reserve fund – the difference between the $5 million fund limit and $3,938,013 in total fund expenditures at that point.  On March 8, 2006, respondent resolved to seek voter approval at its May 16, 2006 annual district meeting to extend the reserve fund to June 30, 2011 and increase its limit to $12 million (“Proposition 3”). Respondent further resolved that, if voters approved the proposition, it would transfer the $3,345,855.23 to the new reserve fund; if voters did not approve the proposition, the money would be applied to reduce the 2006-2007 tax levy.  Respondent also sought voter approval to expend the remaining $1,061,987 in the existing capital reserve fund for certain improvements during the 2006-2007 school year (“Proposition 2”).  Prior to its May 16, 2006 annual district meeting, respondent disseminated several flyers with information regarding Propositions 2 and 3.

Petitioner commenced this appeal on April 12, 2006.  He asserts that respondent engaged in improper electioneering regarding the May 16, 2006 vote on the propositions. Specifically, petitioner asserts that certain flyers respondent prepared and disseminated prior to the vote contained inaccurate information and improperly exhorted voters to approve the propositions.  Petitioner also contends that respondent improperly attempted to influence voters by scheduling a parent orientation meeting the same night of the district meeting at a school polling place. Finally, petitioner claims that respondent improperly targeted only parents of district students by sending flyers home with their children. For relief, petitioner sought an interim order directing respondent to revise the flyers and disseminate them to all district residents prior to the May 16, 2006 vote and to reschedule the parent orientation meeting.  On May 10, 2006, petitioner’s request for interim relief was denied and on May 16, 2006 both propositions were approved.

Respondent denies that it engaged in improper electioneering and asserts that its actions in relation to the May 16, 2006 vote were in all respects proper.

I must first address the scope of the reply submitted by petitioner.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).  Petitioner challenges actions taken by respondent in connection with its May 16, 2006 annual district meeting.  As noted above, petitioner’s request for an interim order was denied on May 10, 2006.  The vote went forward on May 16, 2006 at which time both propositions were approved.  Petitioner does not challenge the outcome of the vote.  Thus, with respect to the claims raised by petitioner, no further meaningful relief may be granted and the appeal is moot.

The appeal must also be dismissed on the merits.  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 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). 

Petitioner has failed to meet his burden.  Petitioner contends that respondent improperly targeted parents of students in the district regarding the reserve fund propositions by sending informational flyers home only with district students. Respondent’s submissions indicate that the flyers were subsequently mailed to all district residents, and that the content of the flyers was repeated in a district-wide budget newsletter, presented at board meetings and contained in postings on the district’s website.  Petitioner presents no persuasive evidence to refute respondent’s contentions. Petitioner’s claim, therefore, is not supported by the record.

Petitioner also complains that respondent scheduled an evening parent orientation meeting at a school polling place on the same date as the district meeting.  Holding a school function on the same date as a district meeting does not alone constitute improper electioneering (see, Appeal of Hoey and Koslowski, 45 Ed Dept Rep 501, Decision No. 15,394).

Petitioner also alleges that respondent presented inaccurate information in the flyers regarding the reserve fund propositions in an effort to persuade voters to approve them.    A board of education has a right to present informational material to the voters concerning a proposed annual budget or propositions (Education Law §1716, Appeal of Warshaw, 44 Ed Dept Rep 360, Decision No. 15,198).  A school district may disseminate only objective, factual information (Appeal of Warshaw, 44 Ed Dept Rep 360, Decision No. 15,198; Appeal of Hager and Scheuerman, 43 id. 363, Decision No. 15,019).  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, 67 NY 2d 672).  Statements that do not specifically urge a "yes" vote may nevertheless violate the holding in Phillips v. Maurer, if such statements otherwise seek to persuade or convey support for a particular position (Appeal of Warshaw, 44 Ed Dept Rep 360, Decision No. 15,198; Appeal of Hager and Scheuerman, 43 id. 363, Decision No. 15,019).

Petitioner asserts that, although the flyers do not explicitly urge a “Yes” vote on Propositions 2 and 3, respondent failed to inform voters that, if the propositions were defeated, funds currently in the existing reserve fund and funds designated for deposit in a reauthorized reserve fund would be used to offset the 2006-2007 tax levy.  Petitioner is incorrect with respect to monies in the existing reserve fund.  Although no additional funds may be deposited in a reserve fund after its term expires, any accumulated monies may be expended, with proper voter authorization, until the fund is depleted (Appeal of Goldin, 43 Ed Dept Rep 20, Decision No. 14,904).

Although petitioner correctly points out that the flyers did not set forth information regarding the effect of a defeat of Proposition 3, such omission does not render the flyers partisan in nature.  On their face, the flyers present objective factual information regarding the proposed reserve fund.  Petitioner cites no legal authority requiring inclusion of any particular information in a district’s informational material.  Moreover, whether the funds designated for deposit in the new reserve fund ultimately would have been applied to offset the 2006-2007 tax levy if Proposition 3 had been defeated is speculative, at best.  Respondent conceivably could have used the funds for some other lawful purpose.  Thus, petitioner has failed to establish that the materials disseminated by respondent were improper or that respondent engaged in impermissible electioneering.

     THE APPEAL IS DISMISSED.

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