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Decision No. 12,871

Appeal of ROBERT AND MARGARET TUMILOWICZ from action of the Board of Education of Port Jefferson Union Free School District, regarding an annual budget vote.

Decision No. 12,871

(December 29, 1992)

Gunnigle, Johnson, P.C., attorneys for respondent, William M. Johnson, Esq., of counsel

SOBOL, Commissioner.--Petitioners, residents of the Port Jefferson Union Free School District, appeal from respondent board's actions regarding an annual budget vote. The appeal must be sustained in part.

Respondent held its annual budget vote for the 1991-92 school year on June 5, 1991. The board presented two propositions for voter approval. Proposition No. 1, which was approved by a vote of 922 to 606, concerned the 1991-1992 operating budget of $21,262,065. Proposition No. 2, defeated by a vote of 973 to 583, concerned transportation for students attending nonpublic schools at a distance in excess of 15 miles.

Petitioners contend that notices were not published as required by law and that no board action was taken to authorize the notices that were published. Petitioners further contend that respondent's budget advisory committee prepared and issued flyers, using school district facilities and personnel, which exhorted voters to "Vote Yes on Proposition #1 today!" and "please note: a Yes Vote for Proposition #2 means that an additional $46,900 will be added to the budget to pay for private school busing up to 25 miles from Port Jefferson . . . a No Vote for Proposition #2 would cut out this service." Petitioners contend that the printing and distribution of these flyers violated the holding of the Court of Appeals in Phillips v. Maurer, 67 NY2d 672, 499 NYS2d 675. Finally, petitioners contend that, upon being presented with a petition from 194 qualified voters requesting that Proposition No. 2 be presented for a second vote, respondent declined to do so. Therefore, petitioners request that I nullify the results of Proposition No. 2 and direct respondent to provide transportation to the affected students.

Petitioners requested interim relief from the Commissioner to stay the annual meeting results. On August 22, 1991, I denied petitioners' request.

Respondent contends that the notice, procedures, election and vote count were in all respects legal and that petitioners have not established that, even if all of their allegations are true, the result of the vote would have been different. Respondent denied that the document referred to by petitioners was prepared by any district office personnel nor reproduced or distributed by any district office personnel. Instead, respondent asserts that it originated from a citizen's group named the "Budget Advisory Committee" which had no access to school premises or school facilities to prepare the document.

With respect to the notice requirements, Education Law '2004 provides in pertinent part that the clerk of the district shall give notice of the time and place of the annual meeting by publishing a notice four times within the seven weeks preceding the meeting. The first publication must be at least 45 days before the meeting in two newspapers if there shall be two, or in one newspaper if there shall be one, having general circulation within the district. Petitioners focus on the fact that the required four notices were published in only one newspaper, the Port Jefferson Record, and only the last notice, published on May 30, 1991, contained certain modified language requested by petitioners and their supporters.

The notices published on April 18, May 2, and May 16 set forth Proposition No. 2: "Shall the Board of Education be authorized to extend the existing 15-mile maximum transportation limit upwards to 25 miles for the school year 1991-92 and to expend a sum not to exceed $46,900 for the transportation of pupils outside the district?" In the notice published on May 30th, the board authorized a change in the language of Proposition No. 2 so that it read: "Shall the board of education continue to be authorized to extend 15-mile maximum transportation limit . . .." (emphasis added). I find that the fact that the modified language was only contained in the last published notice is not a violation of the Education Law. In this instance, the change, made at the behest of petitioners, did not change the substance of the proposition. Petitioners have made no showing that the voters were confused or misled about the substance of Proposition No. 2. The results of a school district election will not be disturbed absent proof that the alleged irregularities or misconduct affected the outcome of the election, or that the irregularities were so pervasive in nature as to vitiate the electorate process (Matter of Boyes v. Allen, 32 AD2d 990, 301 NYS2d 664, aff'd 26 NY2d 709, 308 NYS2d 873; Matter of Gilbert, 20 Ed Dept Rep 174; Appeal of Weaver, 28 id. 183). I find that petitioners have failed to show that the actions of the board in preparing or authorizing the language for Proposition No. 2 was improper.

With respect to the publication of the notices in only one newspaper, respondent does not dispute that there are other newspapers of general circulation in the district including The Port Times, the Village Herald and Newsday. Thus, it would appear that respondent did not comply with the technical requirements of Education Law '2004 by publishing the required notices in two newspapers.

As I noted, however, the results of an election will not be set aside for technical irregularities. The improprieties must be substantial (Matter of Karp, 20 Ed Dept Rep 200). In addition, Education Law '2010 provides that the results of a district meeting, annual or special, will not be held illegal for want of due notice to all qualified voters unless it appears that the failure to give such notice was wilful and fraudulent. Petitioners have not shown that respondent's failure to publish the notices in a second newspaper was wilful and fraudulent (Appeal of Maguire, et al., 31 Ed Dept Rep 73; Appeal of Bayly, et al., 30 id. 442; Appeal of Abel, 10 id. 79).

Petitioners also assert that respondent failed to authorize the propositions prior to their publication. However, at its May 14, 1991 meeting, respondent board did pass a resolution authorizing the two propositions which were ultimately placed on the ballot before the voters. Under these circumstances, I find no violation of the Education Law.

Petitioners also assert that at a special district meeting held on July 25, 1991, the board declined to place the transportation proposition on the ballot a second time. At that meeting, the parties disputed the amount of State aid available to support the cost of additional transportation. Nonetheless, once an issue has been placed before the voters and adequately settled for a particular school year, it is not improper for a board to refuse to place such issue before the voters in the same year (Appeal of Quarfot, 31 Ed Dept Rep 141; Appeal of Austin, 27 id. 17; Matter of Eaton, 11 id. 17). The voters decided by an overwhelming margin to reject funding for the additional transportation for the 1991-92 school year. Therefore, respondent could properly decline to place this issue before the voters for a second time.

Finally, petitioners contend that respondent expended district funds in violation of the law when it permitted the Budget Advisory Committee to use school district facilities and personnel to distribute certain flyers. A board of education is authorized to prepare a proposed budget for voter approval, accompanied by sufficient educational material related to the budget so that residents may more intelligently exercise their right to vote (Phillips v. Maurer, supra). In Phillips, the Court of Appeals held that a board of education may not expend school district funds to disseminate information which is patently designed to exhort the electorate to cast their ballots in support of a particular position advocated by the board. While respondent asserts that the flyer was "neutral", I find that the flyer clearly urged a "Yes" vote for the budget. In this case, although it appears that the flyer was prepared by a citizen's group, and not the respondent, the flyers were distributed to students who brought them home to their parents, as reflected in the petitioners' affidavits. Respondent concedes that the flyer was distributed at the school to students. Petitioners have also supplied affidavits that indicate that the budget advisory committee received approval for the distribution from the superintendent, Dr. Magnarella. To the extent that respondent has permitted this citizen's group sufficient access to school premises so that the flyers could be given to students, I find that respondent's actions were unconstitutional. Respondent cannot allow others to use its school premises to distribute materials that respondent itself cannot distribute directly (Appeal of Allen, 32 Ed Dept Rep 69; Appeal of Weaver, supra). Respondent is required to ensure that other parties limit their partisan activity on school grounds to the same extent as the board of education.

Although I find that respondent's involvement in the dissemination of the flyer was improper, the results of the district meeting may not be invalidated unless it is established that the dissemination of the flyer affected the outcome of the budget vote (Appeal of Greenspan and Motler, 29 Ed Dept Rep 397; Matter of Blake, 27 id. 89). Petitioner has failed to present sufficient evidence that the necessary number of voters would have voted differently but for the flyer. Consequently, I find no basis for overturning the results of the June 5, 1991 district meeting.

I have reviewed petitioners' other contentions and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent amend its 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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