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Decision No. 12,761

Appeal of ROY E. ALLEN II from action of the Board of Education of the East Irondequoit Central School District regarding the conduct of a budget vote.

Decision No. 12,761

(July 24, 1992)

Mousaw, Vigdor, Reeves, Heilbronner & Kroll, Esqs., attorneys for respondent, Dennis T. Barrett, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the conduct of school district officials prior to a budget vote held by the Board of Education of the East Irondequoit Central School District ("respondent") in June 1991. The appeal must be sustained.

Petitioner is a resident of respondent's district and parent of a child attending respondent's elementary school. On June 4, 1991, petitioner's son brought home three PTA campaign flyers regarding the school budget vote and told his father that he should vote "yes" on propositions #1 and #2 while indicating the candidates he should vote for in the election. When questioned by his father, the child explained that he had ascertained the information from his teachers.

Petitioner alleges that the distribution of partisan materials on school property violates the State Constitution's prohibition against gift giving, and loans of money or property to private individuals or organizations (Article VIII, Section 1). Petitioner contends that students were improperly used by school officials to exhort their positions on the budget vote. Petitioner requests that respondent, therefore, be directed to prohibit the partisan use of school district resources. He also seeks a formal reprimand against respondent for using students to promote partisan goals.

Respondent contends that it did not use students to promote a partisan position and alleges that the communications to petitioner's son concerning the budget vote were made by an inexperienced teacher. Moreover, respondent asserts that it specifically instructed its faculty on the prohibition against using school resources to influence the voters. Respondent also contends that since the campaign flyers distributed to the students were produced exclusively with PTA funds, they were not improper.

Although a board of education may provide informational material to the voters concerning a proposed budget or proposition (Education Law '1716), the Court of Appeals held in Phillips v. Maurer, 67 NY 2d 672, 499 NYS2d 675, that school district funds may not be used to exhort the electorate to support a particular position. Respondent's argument that the PTA simply conveyed information to the voters in the same manner as a school board is authorized to do is without merit. One of the PTA flyers submitted by petitioner specifically states "support the budget." Although another is primarily informational, the third, while arguably informational, presents the possibility of a contingency budget in such a negative light, I find that it was designed to solicit favorable votes. In any case, I find the flyer seeking support for the budget more than a reminder to vote as respondent contends. Because it urges voters to vote a certain way, I find that the use of district resources to distribute the flyer is unconstitutional (See Phillips, supra). Although I find that the distribution of the PTA flyer under these circumstances is unconstitutional, nothing in this decision restricts PTAs from using a school district's established means of communicating with parents for informational and non-partisan purposes.

The record further indicates that although district funds were not used to print the PTA flyers, the flyers were distributed on school grounds. Respondent argues further that because the PTA flyers were merely distributed to the students on school grounds, there is no violation of the constitutional prohibition against using public funds to exhort a partisan position. However, even the indirect support of a school board to exhort a partisan position has been deemed improper (See Stern v. Kramarsky, 84 Misc. 2d 447, 375 NYS2d 235; Appeal of Weaver, 28 Ed Dept Rep 183). In this case, respondent's attempt to distance itself from the flyers because it did not provide any funding to produce them is inadequate, when it nonetheless gave the PTA access to its established channel of communication to parents to espouse a partisan position that the board itself was prohibited from doing directly. As such, the board lent its imprimatur to the PTA's position on the vote which I find improper.

Because the PTA flyer exhorts a partisan position and indirectly utilizes school district resources to impart that message, respondent is directed to revise its policy on the use of the schoolhouse and grounds pursuant to Education Law '414 to ensure that other parties are restricted in a manner that limits their activities regarding elections to the same extent as the board of education, without affecting the established non-partisan activities.

Although respondent states that both the superintendent and the building administrator advised teachers that they were prohibited from partaking in any partisan activities vis-a-vis school elections, it provides no evidence to support its claim. Because respondent has not provided sufficient evidence to support its claim that it took the appropriate measures to avert such activities, respondent is admonished and directed to take appropriate steps to ensure that the faculty is fully apprised of the prohibition against espousing to students partisan positions on school related matters pending before the voters.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent amend its '414 policy concerning the use of the schoolhouse and its grounds to prohibit the distribution of partisan literature in a manner consistent with this decision.

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