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Decision No. 13,401

Appeal of DONNY A. SINKOV from action of the Board of Education of the Putnam Valley Central School District regarding a special election.

Decision No. 13,401

(April 12, 1995)

Plunkett & Jaffe, P.C., attorneys for respondent, Phyllis S. Jaffe, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the results of a vote by district voters that authorized the Board of Education of the Putnam Valley Central School District ("respondent") to contract with an adjoining school district to educate respondent's ninth grade students. The appeal must be dismissed.

Petitioner is a resident of the Putnam Valley Central School District. The district currently operates an elementary school for grades K through 5 and a junior high school for grades 6 through 9. Respondent has never operated a high school. Rather, Putnam Valley students in grades 10 through 12 are enrolled in the schools of the Lakeland Central School District, pursuant to a contract approved by district voters under Education Law '2040.

To address increasing student enrollment, respondent commissioned an analysis of future housing needs. Respondent presented a report resulting from that study at its July 14, 1994 board meeting. The report proposed that respondent seek a commitment from Lakeland school district officials to reduce future annual tuition increases which respondent anticipated paying for the education of its students based upon an existing contract with the Lakeland district. The report further noted that if such a commitment could be obtained, the tuitioning out of 9th grade students to Lakeland would be more economical than building a high school. Respondent discussed the report at six meetings between July 14 and October 27, 1994. The report was also presented at a PTA meeting on September 20, 1994 and at a senior citizens meeting on October 9, 1994. On November 16, 1994, district voters approved a proposition authorizing respondent to contract with the Lakeland district for the education of its ninth grade students. The proposition was approved by a vote of 1,420 to 835. This appeal ensued.

Petitioner contends that the results of the vote should be annulled because respondent provided inaccurate information to the voters regarding the relative costs of contracting for the instruction of its high school students versus building and operating a high school. Information respondent supplied to the voters indicates that the average tax increase resulting from the sale of bonds to build a high school would be 12.14% versus a 7.03% increase for contracting out student instruction. The 12.14% figure was based on the repayment of bonds pursuant to the "50% rule" -- making the same principal payment over the life of the bonds with decreasing interest payments. Petitioner contends that the cost of building a high school was greatly overstated by respondent and that the voters were misled into voting for the contracting of student instruction because of that incorrect information. Petitioner contends that the cost of building a high school would be greatly reduced if respondent repaid bonds pursuant to a "level debt service" method -- making lesser payments on the principal during the first years of the term of the debt.

I find no merit to petitioner's contention. The record indicates that if the bond repayment method espoused by petitioner were employed, the average tax increase in the district would be 11.39% versus the 12.14% average increase which would result from use of the 50% method proposed by respondent -- less than a 1% savings. Moreover, petitioner's contention ignores the fact that use of the level debt service method would result in a significant cost increase to the district over the life of the bonds -- approximately $5,650,000. Accordingly, I do not conclude that respondent inaccurately presented the cost of building a high school versus the cost of contracting for the instruction of its high school students.

Moreover, there is a presumption of regularity in the conduct of an election. The Commissioner of Education will not set aside the results of a school district election in the absence of evidence that the alleged irregularities affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd. 26 NY2d 709; Appeal of Roberts, 33 Ed Dept Rep 601), are so pervasive that they vitiate the electoral process (Appeal of Roberts, supra; Matter of Gilbert, 20 Ed Dept Rep 174), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the election provisions of the Education Law (Matter of Levine, 24 Ed Dept Rep 172, aff'd sub nom; Capobianco v. Ambach and Bd. of Educ., Glen Cove City School District, 112 AD2d 640). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483). To warrant setting aside an election, petitioner must establish that the improprieties are substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46). Petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). Upon the record before me, I find petitioner has failed to meet that burden. As noted above, petitioner has failed to show that respondent overstated the cost of building a high school versus contracting for instruction of high school students. In addition, even if respondent had overstated such costs, petitioner presents no evidence that the results of the election were affected in any way.

I have reviewed petitioner's remaining contentions and find them without merit.