Appeal of ROBERT HERLOSKI from actions of the Board of Education of the Webster Central School District and Superintendent Carmen Gumina, relating to a district meeting.

Decision No. 17,361

(March 26, 2018)

Ferrara Fiorenza PC, attorneys for respondent, Colleen W. Heinrich, Esq., of counsel

ELIA,Commissioner.--Petitioner appeals certain actions taken by the Board of Education of the Webster Central School District (“respondent board”) and Carmen Gumina, Superintendent of Schools (“respondent Gumina”) (collectively “respondents”) with respect to a budget vote.  The appeal must be dismissed.

According to the record, respondents’ district is a member of the Monroe County Superintendents’ Public Education Advocacy Committee (“MCSPEAC”).  The district pays annual membership fees to maintain its membership in the organization.

At some time prior to this appeal, MCSPEAC created an initiative called “A Community Together for Education” (“ACT”).  According to the superintendent, “ACT is a coalition of public schools, area businesses, and community members in the Monroe #1 and Monroe 2-Orleans BOCES districts ....”  The superintendent further explains on appeal that ACT “seeks to deliver positive messaging about the public school districts in our community,” and “encourages community support of public education in general.”

Sometime during 2017, ACT made signs available for sale to “[a]ny individual or entity.”  These signs included the slogans: “Supporting Our Public Schools” and “ACT for Education” (the “ACT4ED” sign).  The signs also contained, at the bottom, a URL for the following website: www.ACTforEducation.org.  The ACT4ED signs were available for purchase through the district superintendent for Monroe 2-Orleans BOCES.

The record reflects that several building principals in respondents’ district ordered ACT4ED signs in April 2017 and placed them at various public schools throughout the district.

In May 2017, petitioner engaged in an email exchange with respondent Gumina regarding the ACT4ED signs.  Members of respondent board were copied on the superintendent’s responsive emails.[1]  Petitioner’s position, in those emails and in this appeal, is that the district’s purchase and display of the signs constituted improper use of district funds to advocate a partisan position in violation of Phillips v. Maurer et al., 67 NY2d 672.

The school district budget vote occurred on May 16, 2017, and the budget was approved by a substantial margin of 1,995 in favor to 816 against.  The district utilized a single polling place: the gymnasium of one of its high schools.  Respondents admit that an ACT4ED sign was located outside of the high school which served as the polling place.  At some point after the vote, the district’s building principals removed the ACT4ED signs from district property on a “case-by-case basis.”  Respondent Gumina avers that this was done without input or direction from respondents.  This appeal ensued.

Petitioner contends that the ACT4ED signs, as well as certain statements in a school district newsletter, impermissibly advocated a partisan position in support of the school district budget.  Petitioner submits numerous photographs of the ACT4ED signs and their placement at various district schools.  Petitioner requests a finding that the ACT4ED signs and newsletter constituted impermissible partisan advocacy; a finding that district resources were used to generate these materials; nullification of the May 16, 2017 budget vote; and orders directing respondents to cease erecting ACT4ED signs and engaging in partisan advocacy.

Respondents deny petitioner’s assertions and contend that the district’s use of the ACT4ED signs and statements contained in the newsletter were appropriate.

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 Misc2d 447; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Wallace, 46 id. 347, Decision No. 15,529).

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).

Turning first to petitioner’s challenges to the district’s newsletter, I find that the challenged statements do not constitute improper partisan advocacy under the circumstances presented.  Petitioner objects to the following phrases contained in a portion of the newsletter captioned “2017-18 School Budget Vote” authored by the superintendent and board president: (1) “a fiscally prudent spending plan”; (2) “outstanding educational programs”; (3) “a budget that is fiscally responsible”; (4) “cutting-edge”; and (5) “outdated New York State Foundation Aid formula.”  In this portion of the newsletter, which appears to be in the form of an open letter to the voters, the superintendent and board president urge voters to exercise their right to vote, but do not specifically exhort voters to vote “yes” on the budget.  Upon careful review of the newsletter as a whole, I find that it is factual in nature and does not specifically exhort voters to vote “yes” on the budget (Appeal of Berg, 53 Ed Dept Rep, Decision No. 16,616; Appeal of Sotirovich, 51 id., Decision No. 16,360; Application of Brousseau, 35 id. 291, Decision No. 13,545). The newsletter does include some isolated statements that present close questions, particularly the references to a “fiscally prudent” or “fiscally responsible” budget, but I do not find that they rise to the level of impermissible advocacy (see Appeal of Berg, 53 Ed Dept Rep, Decision No. 16,616; Appeal of Sotirovich, 51 id., Decision No. 16,360; Appeal of Karpoff, et. al., 40 id. 459, Decision No. 14,527, petition to review dismissed sub. nom. Karpoff, et. al., Sup. Ct. Albany Co. [Cobb, J.], August 1, 2001, n.o.r., aff’d 296 AD2d 691; cf. Appeal of Miller, 39 id. 348, Decision No. 14,256 [postcard mailings that were structured to address a specific portion of the budget and included statements about the critical need for those portions of the budget, as proposed, constituted impermissible advocacy]).[2] 

However, while I find that the statements in the newsletter do not constitute improper advocacy, they do present close questions.  Therefore, I urge respondents to use caution in the future to ensure that budget-related newsletters are strictly objective and factual and, therefore, less likely to cause confusion and/or invite criticism (Appeal of Berg, 53 Ed Dept Rep, Decision No. 16,616; Appeal of Sotirovich, 51 id., Decision No. 16,360).

Turning next to the ACT4ED signs, I find that, based on the record before me, although the ACT4ED signs were placed in close physical and temporal proximity to the May 2017 budget vote, the signs convey facially neutral information and did not constitute improper partisan activity under the circumstances.  As indicated above, the ACT4ED signs include two phrases – “Supporting Our Public Schools” and “ACT for Education” – as well as a URL link to www.ACTforEducation.org.  While the record does not contain a printout of this webpage as it existed in or about May 2017, based upon my review of the webpage in connection with this appeal, there is no information on the webpage concerning school budget votes.  Thus, both the information contained on the ACT4ED sign and the webpage referenced therein merely encourage voters to “support” public schools.  The Commissioner has upheld facially neutral information such as this designed to encourage voter turnout.  For example, in Appeal of Flippen (57 Ed Dept Rep, Decision No. 17,296), the Commissioner held that postal cards stating: “PLEASE SUPPORT OUR CHILDREN,” and “HELP Support our Children” did not constitute partisan activity.  Additionally, in Appeals of Schaedtle and Wilcox (38 Ed Dept Rep 599, Decision No. 14,102), the slogan “Our Children, Our Schools, Our Future” was held not to advocate a partisan position because the record contained conflicting evidence as to the origin of the slogan and petitioners did not meet their burden of proving that the district created the slogan solely to promote a positive vote in an upcoming vote. And in Appeal of Miller (39 Ed Dept Rep 348, Decision No. 14,256), the phrase “PLEASE VOTE” followed by a checkmark, contained in a flyer submitted by a parent-teacher organization, was found not to constitute partisan advocacy because it did not indicate how voters should vote.

While the ACT4ED signs did not constitute illegal partisan activity, I note that the manner in which respondents acquired and displayed the signs reveals that respondents did not take sufficient steps to avoid the appearance of partisan impropriety.  Respondent Gumina avers in an affidavit that building principals at the district’s schools “ordered and erected” the signs “at various points in April 2017.”  Thus, at most, principals ordered the signs one and one-half months before the budget vote.  The record reflects that the signs were subsequently placed outside of at least four of the district’s schools: Klem Road North Elementary School, State Road Elementary School, Willink Middle School and Webster Schroeder High School.  Petitioner has submitted photographs of ACT4ED signs located outside of the district’s Klem Road North Elementary School on May 9, 2017; Willink Middle School on May 10, 2017; and State Road Elementary School on both May 10 and May 16, 2017.  Additionally, respondents admit that an ACT4ED sign was placed outside of Webster Schroeder High School, the district’s sole polling location for the May 2017 annual budget vote.

In addition to the temporal proximity between the ACT4ED signs and the annual budget vote, the record reflects that, in at least two instances, ACT4ED signs were placed in close physical proximity to signs reminding voters of the time and location of the annual budget vote.   The May 16, 2017 photograph of State Road Elementary School and the May 10, 2017 photograph of Willink Middle School submitted by petitioner depict ACT4ED signs in close physical proximity to annual budget vote signs.

Moreover, the record indicates that building principals removed both the ACT4ED and annual budget signs the day after the annual vote at three of the schools.  Petitioner submits three photographs from May 17, 2017 which portray the outside of State Road Elementary School, Willink Middle School, and Klem Road Elementary School bereft of ACT4ED and annual budget vote signs.

Further, while respondents argue on appeal that the ACT4ED signs were exclusively available from MCSPEAC, a message dated April 27, 2017, sent by a social media account associated with the district, contained a photograph of an ACT4ED sign with the following caption: “[s]upporting public education w/ @Act4Ed signs.  Get yours from Krista_Grose@webstercsd.org.”  The record reflects that Ms. Grose was employed by respondents as a public relations coordinator.  While Ms. Grose may have, in fact, processed requests for signs by ordering the signs directly from MCSPEAC, the social media posting nevertheless suggests that respondents’ district was directly responsible for ordering and disseminating the ACT4ED signs.

Respondents’ argument that it was the building principals who purchased and displayed the ACT4ED signs, and not the board of education or the superintendent, is not persuasive.  The superintendent of schools is the chief executive officer of the school district and is responsible for the management of its schools, the supervision and direction of school district employees and the enforcement of all provisions of law relating thereto (Education Law §1711[2][b],[e]).  The board of education is the governing board of the school district, and the employer of school district employees, and is charged with the superintendence, management and control of the district (see e.g. Education Law §1709[13],[16],[33]). The superintendent of schools and the board of education cannot evade responsibility for compliance with Phillips v. Maurer, et al., 67 NY2d 672, by asserting that the signs were purchased and placed on school district property by their subordinates.  On this record, it is clear that respondents knew about the purchase and placement of the ACT4ED signs.

While I have found the ACT4ED signs were innocuous in and of themselves, the district’s acquisition of the signs shortly before the budget vote; display of such signs in front of the district’s schools, one of which was the sole polling site (and including, in at least two instances, placement of the signs side-by-side with signs reminding voters of the time and location of the annual budget vote); and general endorsement of the signs through its social media account contributed to an appearance of partisanship which petitioner complains of on appeal.  I admonish respondent to ensure that, should it choose to display the ACT4ED signs in the future, the signs are displayed in a time and manner which does not suggest improper advocacy for the school budget.

Finally, petitioner has provided no proof that respondents’ alleged partisan advocacy in its newsletter or the posting of the ACT4ED signs affected the outcome of the budget vote.  To invalidate the results of a school district election or vote, 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 or vote 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).  Therefore, because petitioner has provided no evidence that the outcome of the vote was affected by improper partisan advocacy, or that the vote involved an irregularity that could and did vitiate the fundamental fairness of the election, there is no basis in the record upon which to nullify the May 16, 2017 budget vote.

THE APPEAL IS DISMISSED.

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