Appeal of ROBERT J. BERG from action of the Board of Education of the Scarsdale Union Free School District regarding a budget vote.

Decision No. 16,616

(June 20, 2014)

Keane & Beane, P.C., attorneys for respondent, Robert A. Longo, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals from action of the Board of Education of the Scarsdale Union Free School District (“respondent”) regarding the district’s May 21, 2013 budget vote. The appeal must be dismissed.

On May 21, 2013, respondent held its annual budget vote and election. The budget for the 2013-2014 school year was rejected by the voters; 1720 voted against the budget and 1502 voted in favor of the budget. On June 18, 2013, the district conducted a second budget vote on an amended budget. The amended budget was approved by the voters; 2465 voted in favor of the budget and 454 voted against the budget.

Petitioner alleges several irregularities with regard to the conduct of the May 21, 2013 budget vote. First, petitioner asserts that the district improperly published and disseminated a taxpayer-funded newsletter, known as Insight, to persuade voters to vote in favor of the proposed budget. Petitioner asserts that this constitutes improper partisan advocacy. Second, petitioner claims that respondent violated Education Law §2031-a(2) by placing numerous copies of Insight within 100 feet of the polling place. Finally, petitioner argues that respondent violated Education Law §2031-a(1) by failing to properly establish a 100-foot zone from the entrance of the polling place, and that this failure resulted in a violation of petitioner’s rights under the First and Fourth Amendments to the United States Constitution.

Petitioner seeks a determination that the district impermissibly expended taxpayer funds in the publication and dissemination of Insight, and violated Education Law §2031-a1 by displaying the newsletter at its polling place and by failing to properly demarcate the 100-foot radius from the entrance of the polling place on May 21, 2013. Petitioner requests an order directing respondent to refrain from engaging in improper advocacy and electioneering in the polling place or within 100 feet of the polling place entrance in future elections; and to comply with the provisions of Education Law §2031-a in future elections.2

Respondent denies that its publication and dissemination of Insight constitutes improper advocacy and asserts that the newsletter contains purely factual information. Respondent admits, however, that for the May 21, 2013 budget vote and election, it placed distance markers at greater distances than the 100 feet required by Education Law §2031-a(1), but that the error was corrected for the June 18, 2013 budget vote. Respondent maintains that the appeal must be dismissed as moot, for failure to join necessary parties, and for failure to state a claim upon which relief can be granted. Respondent also asserts that petitioner seeks to adjudicate novel issues of constitutional law and to obtain a declaratory ruling, for which an appeal to the Commissioner is not the appropriate forum. Finally, respondent objects to petitioner’s reply memorandum of law.

I must first address several procedural issues. By letter to my Office of Counsel dated July 31, 2013, respondent’s attorney requested, pursuant to 8 NYCRR §276.5, that I accept an additional affidavit from respondent’s Head of Grounds to correct an error contained in his original affidavit regarding the placing of distance markers at the May and June 2013 budget votes. According to respondent’s attorney, the statements in the original affidavit were incorrect in that the distance markers for the May 21, 2013 budget vote were not placed 100 feet from the entrance of the polling place, but were posted approximately 145-150 feet from the entrance of the polling place. By letter dated August 6, 2013 to my Office of Counsel, petitioner advised that he did not object to respondent’s additional affidavit “so long as [p]etitioner is permitted to respond to it.”

Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). To the extent it is submitted to correct an error in a previous affidavit, I will accept respondent’s submission of the additional affidavit from its Head of Grounds. I note that respondent should have submitted a factually correct affidavit with its answer; however, under the circumstances presented here, I find that petitioner would not be prejudiced by my review of the additional affidavit on the issue of distance marker placement.

By letter dated August 6, 2013, petitioner requested permission to file a reply memorandum of law to respond to the additional affidavit and “to respond to several arguments raised in” respondent’s memorandum of law. Respondent objects to petitioner’s reply memorandum of law for a number of reasons, including that it contains new allegations and requests for relief, and that petitioner had already submitted a memorandum of law.

Pursuant to §276.4 of the Commissioner’s regulations, reply memoranda of law may be accepted only with the prior approval of the Commissioner (Appeal of Cronk, 53 Ed Dept Rep, Decision No. 16,568; Appeal of Dunshee, 44 id. 414, Decision No. 15,216). A memorandum of law should consist of arguments of law (8 NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668). As noted above, petitioner requests that I accept his reply memorandum of law because it addresses the additional affidavit submitted by respondent and respondent’s memorandum of law. However, since petitioner had an opportunity to, and did, submit a memorandum of law after the service of respondent’s answer, I have reviewed and considered only those portions of petitioner’s reply memorandum of law which specifically respond to the second affidavit of respondent’s Head of Grounds.

To the extent petitioner seeks an order directing respondent to comply with Education Law §2031-a with respect to the 100-foot “no-electioneering zone” in future elections, 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). The record indicates that respondent’s initial budget proposal was defeated on May 21, 2013. Respondent revised the budget and held a budget re-vote on June 18, 2013. The petition does not allege any irregularities as to the June 2013 budget vote and respondent asserts in its verified answer that distance markers were properly placed at the June 2013 budget vote and that no violations of Education Law §2013-a occurred with respect to that vote (see Appeal of Hiller, 47 Ed Dept Rep 304, Decision No. 15,704; Appeal of Hubbard, 47 id. 287, Decision No. 15,699). Accordingly, no meaningful relief can be granted with respect to this claim, which must be dismissed as moot.

Petitioner also requests a determination that respondent impermissibly expended taxpayer funds in the publication and dissemination of Insight, and violated Education Law §2031-a by displaying the newsletter in its polling place on May 21, 2013 (see Appeal of Hiller, 47 Ed Dept Rep 304, Decision No. 15,704). Petitioner has failed to meet his burden of proving that respondent’s dissemination and publication of Insight constituted improper partisan activity. A board of education may use public resources to present objective, factual information to the voters concerning a vote or election (Education Law §1716; Phillips v. Maurer, et al., 67 NY2d 672; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Wallace, 46 id. 347, Decision No. 15,529). However, 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, et al., 67 NY2d 672; Stern, et al. v. Kramarsky, et al., 84 Misc 2d 447; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Wallace, 46 id. 347, Decision No. 15,529).

Petitioner points to numerous portions of Insight that he claims advocate in favor of the proposed budget. For example, in a budget “Questions and Answers” section, the first question reads, “What does the 2013-14 budget achieve?” The first bullet point states that the budget "preserves core curriculum, maintains current class size, invests in teacher education, funds physical plant improvements, and continues to advance strategic initiatives in critical and creative thinking, global interdependence, and research and technology.” Under the question “What Main Factors are Driving the Budget?,” the answer reads, “... [a]t the same time, [respondent] remains mindful of the interplay between the need to maintain its landmark school district – which undergirds everyone’s property values – and the need to contain costs and taxes.” Respondent maintains that these and the other statements in Insight cited by petitioner contain factual information and do not constitute improper partisan activity.

After careful consideration of the information presented in the newsletter, I find that it is factual in nature, and does not specifically exhort the voters to vote “yes” on the budget (see e.g., Appeal of Sotirovich, 51 Ed Dept Rep, Decision No. 16,360; Appeal of Moessinger, 33 id. 487, Decision No. 13,123; Appeal of Brower, 33 id. 368, Decision No. 13,081). I note that, while a statement in respondent’s newsletter links property values to the strength of the school system, I have previously found that these types of statements present close questions, but do not rise to the level of improper advocacy (see Appeal of Karpoff, et al., 40 Ed Dept Rep 459, Decision No. 14,527, affd Karpoff, et al. v. Mills, et al., Sup. Ct. Albany County [Cobb, J.], Aug. 1, 2001, n.o.r., affd 296 AD2d 691 [3d Dep’t 2002], motion for leave to appeal denied, 99 NY2d 501 [2002]). While I find that the statements in respondent’s newsletter do not constitute improper advocacy, they do present close questions. Therefore, I remind respondent to use caution in the future to ensure that its budget-related newsletters are strictly objective and factual, and therefore, less likely to cause confusion and/or invite criticism (see e.g., Appeal of Sotirovich, 51 Ed Dept Rep, Decision No. 16,360; Appeal of Moessinger, 33 id. 487, Decision No. 13,123; Appeal of Brower, 33 id. 368, Decision No. 13,081).

In any case, even if petitioner had met his burden of proving that respondent engaged in impermissible partisan activity, petitioner has provided no proof that any of the alleged irregularities committed by respondent affected the outcome of the budget vote. To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also a probability that any irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905), were so pervasive that they vitiated the electoral process (Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Georges, 45 id. 453, Decision No. 15,380), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, affd sub nom Capobianco v. Ambach, et al., 112 AD2d 640). Implicit in these decisions is the recognition that it is a rare case where errors in the conduct of an election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748; Appeal of Georges, 45 id. 453, Decision No. 15,380).

It is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election (Appeal of Wallace, 46 Ed Dept Rep 347, Decision No. 15,529; Appeal of Hager and Scheuerman, 43 id. 363, Decision No. 15,019). Even indirect support, such as a school board giving a PTA access to its established channels of communication to parents to espouse a partisan position that the board itself was prohibited from doing directly, has been deemed improper (Stern, et al. v. Kramarsky, et al., 84 Misc 2d 447; Appeal of Wallace, 46 Ed Dept Rep 347, Decision No. 15,529; Appeal of Hager and Scheuerman, 43 id. 363, Decision No. 15,019).

It is well settled that mere speculation as to the effect of alleged irregularities provides an insufficient basis on which to annul election results (Appeal of Crawford, et al., 47 Ed Dept Rep 413, Decision No. 15,739; Appeal of Kudlack, 45 id. 272, Decision No. 15,319). Although petitioner claims a number of alleged irregularities in relation to the May 21, 2013 budget vote, he does not provide a single affidavit from any individual stating that he or she would have voted differently but for the alleged irregularities. Indeed, the petition does not even seek to overturn the results of the May 2013 budget vote or allege that the outcome of the May 2013 budget vote was affected. Without proof that an irregularity occurred and affected the outcome of the vote, there is no basis on which to overturn the result.

In light of this disposition, I need not address the parties’ remaining contentions. However, although the appeal must be dismissed, I remind respondent to ensure that all annual budget votes are conducted in a manner that avoids even the appearance of impropriety so as to preclude, to the extent possible, voter confusion and related controversy.

THE APPEAL IS DISMISSED.

1 While the petition includes a request for relief for violation of Education Law “§2301-a,” I take judicial notice that the Education Law does not contain a §2301-a, and that the relevant provision is Education Law §2031-a.

2 I note that, while the petition seeks certain relief as against respondent’s assistant superintendent, district clerk, and trustees, petitioner withdrew his claims as to those individuals by letter to my Office of Counsel dated August 6, 2013.

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