Appeal of JERRY ROMANO from action of the Board of Education of the North Shore Central School District and Superintendent Peter Giarrizzo regarding a budget vote and election.

Decision No. 18,076

(January 27, 2022)

Frazer & Feldman, LLP, attorneys for petitioner, Bryan Georgiady, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals actions taken by the Board of Education of the North Shore Central School District (“respondent board”) and Superintendent Peter Giarrizzo (collectively, “respondents”) in connection with the district’s 2021 annual budget vote and school board election.  The appeal must be dismissed.

On April 23, 2021, the superintendent emailed all individuals on the district’s mass email list[1] concerning the upcoming district budget vote, election of trustees, and proposed 2021-2022 school budget.  The email’s subject line read:  “Q&A: Budget Facts – Proposition 1 and Meet the Candidates Night” (“April 23 email”).  The body of the email provided information about the school budget, an upcoming “Meet the Candidates Night,” and how to vote in the upcoming election.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 10, 2021.

Petitioner contends that the April 23 email improperly advocated in favor of passage of the proposed school budget.  Petitioner further contends that the email was an improper targeted communication because it was sent to the district’s mass email distribution list and not to the “full electorate.”  For relief, petitioner requests orders directing respondents to “stop all targeted communication” about the budget and trustee elections; to communicate “to the electorate as a whole”; to provide specific financial budget information; and to “stop the practice of communicating pernicious information which can be construed as threatening the community if the budget vote were to not pass.”

Respondents contend that the April 23 email consisted of fact-based statements on the proposed budget and did not constitute impermissible advocacy.  Respondents further deny that the email was sent to a select group, asserting that the information contained in the email was broadly distributed in a manner calculated to reach all district residents.  

A board of education may use public resources to present objective, factual information to the voters concerning a vote or election (Matter of Phillips v Maurer, 67 NY2d 672, 673-674 [1986]; see Education Law §§ 1716, 2022; Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Caswell, 48 id. 472, Decision No. 15,920).  While a board of education may disseminate information “‘reasonably necessary’ to educate the public,” it may not use district resources to distribute materials “designed to exhort the electorate to cast their ballots in support of a particular position advocated by the board” (Matter of Phillips, 67 NY2d at 674 [citing Education Law § 1709 (33)]; Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Caswell, 48 id. 472, Decision No. 15,920).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

Petitioner has not met his burden of proving that the April 23 email constituted improper advocacy.  Petitioner does not identify any specific language that he finds objectionable, merely asserting in conclusory fashion that the email “includes content in promotion of the North Shore Central School Districts (sic) agenda and cherry picks information in support of the school budget.”  The email, structured in a question-and-answer format, provides basic information on the budget, “Meet the Candidates Night,” and the scheduled budget vote and trustee election.  While the email includes some isolated statements that present close questions—i.e., that the proposed budget “[e]nsures the safety and security of our students and staff,” “[m]aintains desirable class sizes,” and “supports the continued implementation” of the district’s strategic plan—I do not find that they rise to level of impermissible advocacy (see Appeal of Berg, 53 Ed Dept Rep, Decision No. 16,616 [upholding similar statements]).  I nevertheless remind respondent to ensure that budget-related communications are strictly objective and factual, and therefore, less likely to cause confusion or invite criticism (see e.g. Appeal of Herloski, 57 Ed Dept Rep, Decision No. 17,361; Appeal of Berg, 53 id., Decision No. 16,616; Appeal of Brower, 33 id. 368, Decision No. 13,081).

Turning next to petitioner’s claim of targeted communications, the use of specialized mailings or distributions to parents of students or other selected groups may, in some instances, suggest the appearance of partisan activity (Appeal of Schadtle, 38 Ed Dept Rep 599, Decision No. 14,102; Appeal of Sowinski, 34 id. 184, Decision No. 13,276).  In this case, however, the district’s communication was sent via a mass email list, which is available to the general public.  The superintendent asserts that the mass email list is a method by which the district can “directly and instantly reach out to [those] members of the community [who subscribe] to pass along information and inform them of upcoming District events ....”  He further explains that “[t]here are no qualifications to subscribe,” and eligibility is “open to the public” via a link on the district’s website.  Additionally, the superintendent indicates that the text of the April 23 email was “simultaneously” uploaded to the District’s website and its Facebook page.  This evidence refutes any suggestion that respondents engaged in improper targeting (Appeal of Christe, 40 Ed Dept Rep 412, Decision No. 14,514).

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

THE APPEAL IS DISMISSED.

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