Appeal of DIANE NAHAS, from action of the Board of Education of the Port Washington Union Free School District regarding a bond referendum.

Decision No. 16,816

(August 18, 2015)

Bond, Schoeneck & King, attorneys for respondent, John A Miller, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges certain actions of the Board of Education of the Port Washington Union Free School District (“respondent”) relating to a bond referendum. The appeal must be dismissed.

On March 10, 2015, the voters of the Port Washington Union Free School District approved a bond referendum in the amount of $69,877,198 for renovations, repairs and new construction of respondent’s school buildings and administration building.   This appeal ensued.

Petitioner alleges respondent provided grossly incorrect statements regarding the impact of the bond referendum on district taxpayers to mislead voters to vote yes on the referendum. Petitioner alleges respondent never informed the voters of the total tax impact of the bond over the bond term and instead understated the tax impact.  Petitioner requests that I void the bond referendum.  Petitioner’s request for interim relief was denied on April 28, 2015.

Respondent denies petitioner’s allegations and contends that petitioner lacks standing to represent taxpayers other than herself.

I note that the petition includes copies of newspaper articles.  It is well-settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of McFeeley, 53 Ed Dept Rep, Decision No. 16,598; Appeal of Parris, 51 id., Decision No. 16,261).  Therefore, I have not considered such articles for the veracity of their content.

Petitioner has submitted a reply to respondent’s answer, which also includes additional allegations and exhibits not responsive to such documents.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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.

In her reply, petitioner requests that I ignore the affidavit of respondent’s assistant superintendent of business sworn to on April 6, 2015, and respondent’s memorandum of law in opposition to petitioner’s stay request served on April 7, 2015, because they both were prepared before petitioner served her verified petition on April 9, 2015, and petitioner therefore claims that she does not know to which petition the affidavit and memorandum are intended to respond.  However, respondent states that on March 31, 2015 petitioner initially served respondent with her petition which failed to include the verification required by 8 NYCRR section 275.5, and did not serve the petition with the verification on respondent until April 9, 2015.  Respondent then served a revised memorandum of law in opposition to petitioner’s stay request on April 10, 2015.  Since petitioner does not offer any rebuttal to respondent’s statement, pursuant to Commissioner’s Regulations sections 276.1 and 276.5 I have accepted the affidavit of respondent’s assistant superintendent of business and the revised memorandum of law in opposition to petitioner’ stay request, for purposes of responding to petitioner’s verified petition served on April 9, 2015.

Respondent contends that petitioner lacks standing to represent taxpayers other than herself.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Other than to state that the appeal is brought on behalf of “the taxpayers of Port Washington,” petitioner has failed to adequately describe the class which she seeks to represent so as to establish that all questions of fact and law are common to all members of the class. Therefore, the appeal must be dismissed for petitioner’s lack of standing to bring this appeal on behalf of the taxpayers of the district.

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

To invalidate the results of a school district election, petitioner must establish not only that an irregularity occurred, but that the 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 Goldin, et al., 40 Ed Dept Rep 639, Decision No. 14,573; Appeal of Lawson, 38 id. 713, Decision No. 14,124; Appeal of Chechek, 37 id. 624, Decision No. 13,943), were so pervasive that they vitiated the electoral process (Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162; Matter of Gilbert, 20 id. 174, Decision No. 10,366), 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, affd subnom, Capobianco v. Ambach, et al., 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, 33 id. 601, Decision No. 13,162).

Petitioner alleges that respondent misled the voters by understating the tax impact of the bond referendum on the taxpayers of the district. Specifically, petitioner alleges respondent misled the voters by stating that the total additional cost to each taxpayer will be on average $106/year for 7 years.  Petitioner contends that the true average cost of the bond per taxpayer is $106/year through 2023, and that from 2023 to 2040 the average cost per taxpayer will be approximately $500 per year, resulting in an estimated total cost increase to the average homeowner of about $7500 from 2016 through 2040. 

Respondent denies that the information it presented on the tax impact of the bond referendum was incorrect or misleading.  Respondent contends that the information presented explained the “net” tax impact on the average district homeowner’s share of the school district’s principal and interest payments for capital projects, including the district’s principal and interest payments on an earlier bond approved by the voters in 2001 which will be satisfied in July 2023.  According to an affidavit of respondent’s Assistant Superintendent for Business, in the short term, starting in 2015, the average district homeowner will see an increase of approximately $106/year that is attributable to the bond approved by the voters in 2015; that in 2023, when the principal and interest payments on the 2001 bond are retired, the annual tax impact will level off and be roughly equal to the annual tax impact of the district’s capital projects prior to the 2015 bond; and that therefore, instead of projecting a decrease in tax levy attributable to the 2001 bond when the principal and interest payments of such bond come to an end and then projecting a corresponding increase in the tax levy attributable to the 2015 bond, the district explained the “net” anticipated tax impact if the 2015 bond were to be approved by the voters.  Under the circumstances presented here, I do not find respondent’s use of a “net” tax impact to be unreasonable (see Appeal of Langstedt, 41 Ed Dept Rep 309, Decision No. 14,696).   

Even if I were to accept, for purposes of argument, that respondent provided incorrect and/or misleading information on the tax impact of the bond referendum, I find that petitioner has failed to carry her burden of proof to establish that such information affected the results of the election.  Where a vote is on a capital project and the financing thereof, to demonstrate that the outcome has been affected, the proof must contain affidavits or statements from individuals who voted in favor of the referendum that their vote would have been otherwise but for the alleged misconduct (Appeal of Herloski, 50 Ed Dept Rep, Decision No. 16,089; Appeal of Krantz, 38 id. 485, Decision No. 14,077).  The bond proposition was approved by a margin of 239 votes.  However, petitioner submits the affidavit of only one individual, which states that the affiant would not have voted “yes” and would have voted “no” if she had known the “true cost” of the bond, which she states as being “$400 year for the average homeowner.” 

Furthermore, the Assistant Superintendent of Business also states in her affidavit that both respondent and respondent’s budget and facilities committee held numerous public meetings at which the tax impact of the 2015 bond was discussed and explained to members of the school community, including a statement made by a board member at a January 13, 2015 public meeting that “the level of taxes paid today ... will remain there, and one bond is replacing the other”; a statement made by the board president at the February 24, 2015 board meeting that “the amount of money that would go back to the taxpayers in 2023 were we ... not to raise any money in any bond ... would be between $400 and $450 for the average taxpayer”; and a statement made by a community member and parent that “contrary to other statements that I’ve heard over and over again, we as parents, as voters, are keenly aware of what the financial aspects are.  We’re not ignorant about it.  We’re not being deceived about it.  We’re aware that there’s a bond that’s coming off the books in 2023, that this new bond will be replacing those costs.  We know we’re not getting a windfall.  We know we’re not getting previous bond expenses put back into our pockets....”   

On the record before me, I find that petitioner’s claim that the alleged misleading information affected the outcome of the vote is merely speculative and that petitioner has failed to sustain her burden of proof.  It is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Antaki and Mosman, 47 Ed Dept Rep 228, Decision No. 15,678; judgment granted dismissing petition, Antaki and Mosman v. Mills and Bd. of Educ., Pleasantville UFSD, Sup. Ct., Albany Co., [Platkin, J.], May 30, 2008, n.o.r.; Appeal of Marchesani, 44 id. 460, Decision No. 15,232). Additionally, 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).

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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