Appeal of GEORGE R. HUBBARD from action of the Board of Education of the Greece Central School District regarding a bond referendum.

Decision No. 17,656

(June 17, 2019)

Harris Beach, PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel

BERLIN., Acting Commissioner.--Petitioner appeals various actions of the Board of Education of the Greece Central School District (“respondent”) relating to a bond referendum.  The appeal must be dismissed.

On December 4, 2018, voters in the Greece Central School District approved a bond referendum for a capital improvement project (“the project”) by a margin of 2,183 votes.  Petitioner alleges that respondent distributed newsletters and postcards which improperly used public funds to exhort a “yes” vote on the referendum.  Petitioner also contends that the board fraudulently failed to disclose the interest cost of the bond to voters and improperly held a vote which affected district finances on a date other than the third Tuesday in May.  Finally, petitioner contends that respondent failed to distribute the exact wording of the proposed bond referendum to voters in its mailings.

Petitioner requests that I nullify the bond referendum, that I find that respondent allowed district resources to be used to exhort a “yes” vote on the referendum and that it disseminated statements that were “misleading, incomplete, and ambiguous,” and that I direct respondent to refrain from doing so in the future.  In addition, petitioner requests that I order respondent to cease and desist from holding special district meetings for the purpose of voting on financial matters on dates other than the statutory statewide annual election and meeting date in May.  Petitioner also asks that I find that respondent failed to disclose the interest costs of the bond to voters and that I order respondent to provide such information and refrain from providing inaccurate information in the future.

Respondent denies any wrongdoing and maintains that petitioner has failed to provide evidence that the outcome of the vote was affected by the alleged improper conduct.

Pursuant to 8 NYCRR §276.9, the Commissioner in his/her discretion may dismiss an appeal at any time if it is untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  However, with respect to appeals involving school district elections, I have held that it would be unreasonable and detrimental to the efficient resolution of a petitioner’s claims to require that petitioner institute separate appeals with respect to acts comprising a series of events closely related to the election (Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Antaki and Mosman, 47 id. 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 Maliha, 41 id. 367, Decision No. 14,716).  In such circumstances, even though the appeal involves acts occurring more than 30 days from the date the appeal is commenced, I have declined to dismiss the appeal as untimely provided the appeal is commenced within 30 days of the election (see Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Antaki and Mosman, 47 id. 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.).

In this case, the referendum vote was held on December 4, 2018, and all district actions about which petitioner complains were closely related to the bond vote and were performed prior to this date.  Petitioner commenced this appeal on January 4, 2019, 31 days after the bond vote.  Petitioner has offered no excuse for the delay and, therefore, the appeal must be dismissed as untimely (Appeal of Leland, 37 Ed Dept Rep 525, Decision No. 13,918; Appeal of Crook, et al., 35 id. 546, Decision No. 13,628).

Even if the appeal were not subject to dismissal as untimely, I would dismiss it 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

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, aff’d 26 NY2d 709; Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Caswell, 48 id. 472, Decision No. 15,920), were so pervasive that they vitiated the electoral process (Appeal of the Bd. of Educ. of the Minerva Central School District, 54 Ed Dept Rep, Decision No. 16,628; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905), 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 Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748).

Petitioner’s primary contention in this appeal is that the district’s statements in its newsletter and postcard that the bond resolution would result in no new taxes were incorrect or misleading.  In those documents, respondent variously states that “School Taxes WILL NOT Increase as a Result of This Project,” that the tax bill increase resulting from the bond referendum would be zero, and that the project would be accomplished “with no additional tax levy increase associated with this project.”  The Assistant Superintendent for Finance and Administrative Services (“Assistant Superintendent”) explains in an affidavit that the total cost of the project is projected to be $107,825,000.  Approximately 15 percent, or $15,695,000 of the total cost, is to come from capital reserves – in other words, money the district already has.  The remaining $92,130,000 is to come from issuance of debt in the form of bonds, which will result in the need to pay bond interest, and from State building aid generated by the debt service from such bonds.  However, consistent with the district’s video presentation and materials on the bond referendum, the Assistant Superintendent explains that the district, on an annual basis, has budgeted $2.7 million for local costs attributable to capital projects, primarily debt service, and plans to continue to do so in the future.  He further explains that because of “drop-offs” of bonds for prior capital projects which will be paid off in the near future, the $2.7 million already allocated in the budget will be available to pay the debt service, or financing costs, of new bonds issued for the project.  In sum, respondent argues that its statements that the bond resolution will not result in an additional tax levy are true, because it plans to structure its borrowing so that local share of the cost of financing bonds for the project will be paid from the $2.7 million which is already included in the district’s tax levy.  Petitioner makes conclusory assertions that because of financing costs the bond referendum will result in additional costs, but has not explained why respondent’s analysis was in error.  Therefore, on this record, petitioner has not met his burden of proving that respondent’s claim that no additional tax levy will result from the capital improvement project was incorrect or misleading.

Even if I accepted petitioner’s argument that respondent provided incorrect and/or misleading information on the tax impact of the bond referendum, petitioner has failed to carry his burden of proving that such information affected the outcome of the bond referendum (see Appeal of Nahas, 55 Ed Dept Rep, Decision No. 16,816).  Petitioner has failed to demonstrate that respondent did not factually and adequately apprise voters about the terms of the bond referendum.  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).  Petitioner has failed to submit a single affidavit from a district voter stating that the alleged inaccurate or incorrect communications affected his or her vote.  As indicated above, the proposition was approved by a margin of 2,183 votes.

The parties agree that the district sent out at least two mailings and held several meetings (at least one of which was live streamed via social media, recorded, and made available for viewing online) in order to provide district voters with information regarding the bond referendum.  The district also set up a dedicated page on its web site to share information in addition to answering voter questions via online submissions and telephone.  Petitioner makes nothing but unsubstantiated allegations that these presentations were factually inaccurate or incorrect.

Turning to the issue of whether respondent used public resources to exhort a “yes” vote on the referendum, it is well-settled that 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 Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Caswell, 48 id. 472, Decision No. 15,920).  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 Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Caswell, 48 id. 472, Decision No. 15,920).

The record reflects that the district disseminated multiple documents, made presentations, created a dedicated webpage, and advertised via local radio in order to share information regarding the proposed capital improvement project and bond referendum.  Petitioner has not identified any instances in which respondent affirmatively advocated for a “yes” vote on the bond referendum.  Rather, his sole argument appears to be that respondent’s allegedly false statements that the bond referendum would not result in a tax increase constituted impermissible advocacy.  However, such statements by their nature did not exhort voters to vote in favor of the bond referendum.  In any case, I have reviewed the materials disseminated by respondent which were submitted by both parties, and while the materials and presentations encouraged voters to learn about the proposed project and to vote, they did not go so far as to attempt to sway voters to vote “yes.”  I find that, on this record, petitioner has not proven that respondent engaged in any partisan activities sufficient to overturn the vote (Appeal of Herloski, 50 Ed Dept Rep, Decision 16,089; Appeal of Van Allen, 38 id. 701, Decision No. 14,122).

Petitioner also contends that respondent’s selection of December 4, 2018 for the referendum was improper because it “necessitated voters to have knowledge of budgetary matters generally available for the statewide May vote, and not generally available or readily available in December.”  Education Law §416(1), which applies to bond votes, explicitly provides that such votes may occur “at any annual or special district meeting.”  It is within the discretion of the board of education of a central school district such as respondent to call a special district meeting, for a purpose such as conducting a bond referendum, when they shall deem it necessary and proper (Education Law §§1804[1]; 2007; Matter of Galloway v. Saletan, 42 Misc2d 458, aff’d 20 AD2d 796; Appeal of Crook, 35 Ed Dept Rep 546, Decision No. 13,628; Appeal of Hebel, 34 id. 319, Decision No. 13,326; Matter of Gilbert, 20 id. 174, Decision No. 10,366).  Therefore, respondent acted within its discretion granted by statute in calling the special district meeting to be held in December 2018, and petitioner’s claim that the scheduling of the special meeting was improper has no merit.

Petitioner also contends that district communications were impermissibly unclear, incomplete, imprecise and ambiguous because they failed to disclose bond interest and the local share of the project cost and that the wording of the referendum proposition was not included in district mailings.  Petitioner insists that voters were given an inaccurate picture of the overall cost of the capital project because future bond interest costs were not disclosed.  However, petitioner has not cited any statute that specifies the quantum of information that must be provided by a board of education for a bond vote beyond the notices required under the Local Finance Law and the Education Law, and I find none.  Indeed, the Commissioner has previously held that interest is not an object or purpose which can be financed, and thus would not be included in the list of items to be financed in a bond resolution (Appeal of Herloski, 50 Ed Dept Rep, Decision No. 16,089; Local Finance Law §41.10).  Moreover, there is no requirement that an estimate of bond interest be presented in district communications (Appeal of Herloski, 50 Ed Dept Rep, Decision No. 16,089).  Similarly, petitioner has not identified any law that was violated by respondent in failing to specifically disclose the local share of the project cost.  The essence of petitioner’s claim in this regard is that respondent’s alleged failure to provide sufficient information to the voters about financing and other costs was misleading; as I noted above, to overturn the results of a vote based on allegedly misleading information, petitioner was required to prove that the irregularity affected the outcome of the vote, which he has not done.

In addition, there is no requirement that the specific wording of the bond referendum proposition be included in informational mailings disseminated by the district.  The record shows that the district disseminated information via mailings, public meetings, radio, and internet that a special meeting and vote would be held on December 4, 2018.  Newspaper notices were also printed in accordance with Education Law §§2004(1) and 2007(1), and such notices did include the specific wording of the bond referendum proposition.  Therefore, I find that the respondent met its notification obligation with regard to the special meeting and vote.

I have reviewed petitioner’s remaining claims and find that they are without merit.

THE APPEAL IS DISMISSED.

END OF FILE