Decision No. 13,133

(March 17, 1994)

SOBOL, Commissioner.--Petitioner appeals a determination of the Board of Education of the Hauppauge Union Free School District ("respondent") that the voters approved the budget and a bond proposition at the annual district meeting on May 19, 1993 and requests that I set aside respondent's determination on both issues. The appeal must be dismissed.

Petitioner is a resident of the Hauppauge Union Free School District. On May 19, 1993, the district conducted its annual meeting which included the election of trustees and a vote on the annual budget proposition and a bond proposition. The purpose of the bond proposition was to obtain voter approval for the expenditure of funds for any of three alternative construction projects involving renovation, capital improvement and/or energy conservation in various school district buildings. On the night of May 19, after the polls had closed, respondent announced that a majority of the voters approved the budget proposition and that one of the three alternate construction projects had also received approval.

Petitioner challenges the approval of the budget on the ground that respondent allegedly failed to provide sufficient funds to finance the costs of operation of the newly reopened Forestbrook Elementary School. Petitioner also argues that respondent's approval of the bond issue vote was improper on the grounds that there were more total negative votes than positive votes for any of the three alternate construction projects, that there was no notice given to the public of the manner in which the votes were to be counted by respondent, that the physical appearance of the ballots in the voting booth did not resemble the sample ballots and that the wording of the ballots was misleading and confusing to the public.

Respondent contends that there is ample provision made in the budget for the cost of operation of the Forestbrook Elementary School and that the method of tallying the votes for the bond proposition was rational and within the authority of the board. Respondent argues that there is no merit to petitioner's contentions about the alleged lack of notice to the public, the physical appearance of or the wording of the ballots in the voting booths.

In a proceeding before the Commissioner, a petitioner seeking to challenge the action of a board of education bears the burden of demonstrating, both factually and legally, the merit of the arguments advanced (Appeal of Vienie, 31 Ed Dept Rep 216; Appeal of Verity, 31 id. 485). In this case, petitioner has not supplied anything more than general conclusory allegations concerning the alleged lack of an appropriation in the budget for the operation of the Forestbrook Elementary School. Furthermore, respondent has supplied information which supports its contention that sufficient funds for this purpose are contained in the budget. Under the circumstances, petitioner's contention concerning the alleged lack of a budgetary appropriation for Forestbrook cannot be sustained (see, Vienie, supra; Verity, supra).

The bond proposition put before the voters contained four options, and voters were instructed that they could cast a vote for only one of the four. The proposition appeared on the ballot in essentially the following form (The details of the expenditures which appeared on the ballots have been omitted for the sake of brevity):

PROPOSITION NO. 2

(BOND ISSUE PROPOSITION)

YOU MAY VOTE FOR ONLY ONE OF THE OPTIONS.

OPTIONS NO. 1, NO. 2, OR NO. 3 AUTHORIZE CAPITAL IMPROVEMENTS.

OPTION NO. 4 IS A "NO" VOTE FOR CAPITAL IMPROVEMENTS

OPTION NO. 1 ESSENTIAL RENOVATIONS

$3,200,000 G

OPTION NO. 2 ESSENTIAL RENOVATIONS

AND ENERGY CONSERVATION $6,100,000 G

OPTION NO. 3 ESSENTIAL RENOVATIONS,

ENERGY CONSERVATION,

AND NECESSARY CAPITAL IMPROVEMENTS

$7,500,000 G

OPTION NO. 4 NO AUTHORIZATION G

The first three options authorized the expenditure of funds for various construction projects. Option No. 1, `Essential Renovations,' authorized construction, alteration and improvement of the various schools operated by respondent, including the Forestbrook Elementary School at a cost of $3,200,000. Option No. 2, `Essential Renovations and Energy Conservation,' authorized the same expenditures as Option No. 1 together with additional funds for energy conservation improvements at a total cost of $6,100,000. Option No. 3, `Essential Renovations, Energy Conservation, and Necessary Capital Improvements,' authorized expenditures for `essential renovations' and added funds for `energy conservation' and `necessary capital improvements' at a total cost of $7,500,000. Option No. 4 was a `no' vote, i.e., the voter electing this option did not authorize the board to undertake any of the capital projects enumerated in Option Nos. 1, 2 or 3. The votes canvassed and tabulated by respondent for the various options are as follows: 379 votes for Option No. 1, 261 votes for Option No. 2, 492 votes for Option No. 3, and 1,047 votes for Option No. 4. Respondent determined that the voters had approved Option No. 1.

There is no dispute about the actual tally of the votes tabulated and canvassed by respondent. Petitioner argues that respondent's method in determining that a majority of the voters had authorized the expenditure of $3,200,000 for the `essential renovations' described in Option No. 1 is improper and illegal. Petitioner asserts that because none of the individual options received a total number of votes in excess of the total number of votes for Option No. 4, i.e., the vote against expenditure of any funds for capital projects, that all three of the expenditure options must be considered to have been defeated. Petitioner also contends that respondent failed to provide adequate notice to the voters of the method by which it would determine whether any of the options had been approved.

In reaching the conclusion that Option No. 1 had been approved, respondent added together all the votes cast for Option Nos. 1, 2 and 3. Respondent maintains a vote for Option Nos. 2 and 3 also authorized expenditure of funds for `essential renovations' since Option Nos. 2 and 3 both included authorization for the minimum expenditure necessary for this purpose contained in Option No. 1. Respondent concludes, therefore, that it was rational to add together the votes cast for Option Nos. 1, 2 and 3 to arrive at a total of 1,132, which was in excess of the 1,047 votes cast for Option No. 4, the vote against authorizing the expenditure of any funds for capital construction projects.

The record before me reveals that respondent gave ample public notice of the conduct of the vote, with respect to both the budget and the bond propositions. There is no requirement in the Education Law that respondent provide notice of its proposed method of tallying or canvassing the votes with respect to each proposition. Moreover, the record contains an affidavit from respondent's assistant superintendent for business and other evidence which demonstrates that the district explained the method of tallying the votes for the bond proposition by the distribution of materials and through oral presentations at various public meetings. While petitioner challenges the efficacy of respondent's attempts to explain this methodology, the record clearly demonstrates that such explanations occurred prior to the date of the public meeting at which the vote was conducted. Having failed to demonstrate that the law specifically requires some form of published notice of the methodology for calculating the vote on a proposition or respondent's refusal to offer a reasonable explanation of its methodology for such purpose prior to the date of the vote, petitioner's contention cannot be sustained.

To set aside the results of a vote or election, petitioner bears the burden of demonstrating that the will of the voters has not been carried out (Appeal of Gross, 26 Ed Dept Rep 121; Appeal of Paige, 26 id. 247). In this case, this would require petitioner to supply a sufficient number of affidavits from people voting for Option Nos. 2 and 3 stating that in casting votes for these options, they did not understand that they might also be authorizing approval of the expenditure of funds for Option No. 1. Petitioner has failed to produce any such affidavits. Since the ballot indicates that a vote for an option which authorized a higher level of expenditure also authorizes the lesser level of expenditures provided in the earlier options, I find that respondent's method of tallying the votes is rational. Therefore, I find no basis upon which to sustain petitioner's contention.

While I find no legal or factual basis in this record to support petitioner's claims, I must comment on the method of vote tabulation employed by respondent. Absent a clear enunciation by a board of education of the procedure it will use to tally the results of a proposition vote of the type which was the subject of this appeal, it is possible that the voters at some future public meeting may be able to demonstrate that they were confused or misled by the distinctive method of voting used in this case as compared to that customarily used in school district elections. I, therefore, strongly recommend that respondent, and other school districts which opt to use the voting format described in this appeal take particular care to provide notice, in the voting instructions contained in the ballot booth and with absentee ballots, sufficient to apprise the voters of the methodology to be used in canvassing the vote.

THE APPEAL IS DISMISSED.

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