Appeal of LLOYD G. SUTTON, JR., from action of the Board of Education of the Homer Central School District, and the Superintendent of Schools regarding a bond referendum.

Decision No. 17,331

(February 27, 2018)

Harris Beach, P.L.L.C., attorneys for respondents, Kate L. Hill, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from action of the Board of Education of the Homer Central School District (“respondent” or “board”), and Superintendent Nancy Ruscio (collectively, “respondents”), regarding the conduct of the December 16, 2014 special district meeting held for the purpose of voting on a proposition to authorize certain facilities improvement projects.  The appeal must be dismissed.

Petitioner is a resident of respondent’s district.  The record indicates that respondent approved a resolution on October 14, 2014 to conduct a special district meeting for the purpose of voting on a proposal to authorize certain facilities improvement projects at the Hartnett Elementary School within respondent’s district.  This appeal ensued.  Petitioner's request for interim relief was denied.

Petitioner contends that respondents engaged in improper advocacy in support of the referendum by presenting and issuing certain written materials which contained inaccurate and intentionally misleading information.  Specifically, petitioner alleges that respondents used district funds to circulate a mailer to certain district residents which included “non-objective partisan views that serve to sway the voters about issues that are the subject of a school district vote.”

Additionally, petitioner alleges that during a radio interview with a local radio station, respondent’s superintendent presented a false analysis of the financial benefit of the project, and attempted to influence voters to support the proposition.  Petitioner further alleges that two board members authored a guest editorial in a newspaper which was intended as “partisan propaganda to influence a District vote” and that such board members did not specifically state that the editorial reflected their personal opinions, and not those of respondent board.  Petitioner further contends that the information disseminated by respondents in support of the referendum was “intentionally partisan, misleading and or inaccurate” and that district resources were used to promote such position.

Petitioner seeks a determination that respondents improperly used district funds to “prepare and present material designed to exhort the electorate to cast their ballots in support of a particular partisan position....”  Petitioner further requests that I admonish the board and superintendent for improperly using public resources for partisan activities and order them to refrain from doing so in the future. 

Respondents assert that the board properly used public resources to present objective, factual information to the voters and that the materials were designed to inform the voters about the proposition, and corrected inaccurate information presented to the public by a third party.  Respondents further maintain that the appeal must be dismissed for failure to join necessary parties, failure to state a claim upon which relief may be granted, and because petitioner failed to meet his burden of proof that respondents’ actions were arbitrary, capricious or an abuse of discretion.  Respondents further assert that the appeal must be dismissed as moot as the bond referendum vote was held and defeated by the voters on December 16, 2014.

I must first address several preliminary matters.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Here, although petitioner requests that the Commissioner “take such measures as is deemed appropriate to require the Board of Education and Superintendent to refrain from using district funds to advocate improper partisan views to influence the electorate for future district votes,” he did not specifically name the superintendent in the caption, nor did he serve the superintendent with a copy of the petition.  Therefore, because the superintendent’s rights would be adversely affected by a determination of this appeal in favor of petitioner, to the extent that petitioner seeks an order requiring the superintendent to cease partisan activity and improper use of funds in future elections, such claims must be dismissed for failure to join a necessary party.

Next, petitioner objects to the late submission of respondents’ answer.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813).  The record indicates that respondents were granted an extension of time to serve the answer until January 5, 2015.  However, the record further indicates that such answer was not served on petitioner until January 6, 2015.  Accordingly, because such answer was late, and respondents offer no justification for the delay, I have not considered respondents’ answer (Appeal of R.S., 57 Ed Dept Rep, Decision No. 17,238).  However, respondents’ affidavit in opposition to petitioners’ request for interim relief and respondents’ memorandum of law are properly part of the record before me, and I have considered them to the extent that such documents are responsive to the allegations contained in the petition (see Appeal of C.C., 53 Ed Dept Rep, Decision No. 16,526).

Petitioner submitted a reply in this matter.  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. 

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).  As noted above, the record indicates that voters defeated the bond vote referendum by a vote of 708 (yes) to 981 (no) on December 16, 2014.  Moreover, petitioner sought interim relief in this matter which was denied; however, his request for interim relief did not include a request to stay the vote on the proposition and sought only a prohibition of the continued dissemination of allegedly partisan and non-factual information related to the vote.  Thus, given the defeat of the referendum which petitioner claimed was improperly promoted by respondents, there is no longer any actual case or controversy related to the conduct of the vote.  As such, petitioner’s claims related to this proposition must be dismissed as moot.   

In light of this disposition, I need not address the parties’ remaining contentions.  Nevertheless, I remind the district that boards of education must conduct all votes and elections in accordance with Phillips v. Maurer, et al. (67 NY2d 672).

THE APPEAL IS DISMISSED.

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