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Decision No. 13,517

Appeal of DAVID CRAWMER from action of the Board of Education of the East Greenbush Central School District regarding a special school district meeting.

Decision No. 13,517

(November 15, 1995)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, David W. Larrison, Dennis T. Barrett and Norman H. Gross, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges respondent's conduct concerning a bond proposition. The appeal must be dismissed.

Petitioner is a resident of the East Greenbush Central School District ("respondent"). Respondent scheduled a special district meeting on April 5, 1995 to consider a proposition in an amount not to exceed $29,730,540 authorizing a bond issue for construction on school buildings. Prior to the bond vote, respondent disseminated three informational newsletters to district residents. Those newsletters estimated the total cost of the bond issue at $22 per year for the average taxpayer. On the day of the vote, the newsletters were placed at the polling place, although their exact location is in dispute. On April 5, 1995, district voters approved the proposition 1,935 to 1,862. This appeal ensued.

Petitioner seeks an order setting aside the results of the special election. He also seeks an order requiring respondent to render an accounting of the money spent on the newsletters, their distribution and the costs of holding the special election. Petitioner further alleges that respondent's newsletters improperly advocated approval of the bond issue and contained false information. Respondent contends that its newsletters were merely informational in nature and thus proper. Respondent also claims that petitioner has not presented any evidence that anyone was deceived by the information presented and claims that petitioner fails to state facts showing that he is entitled to relief. Respondent also contends that petitioner's reply is improper on procedural grounds.

Before reaching the merits, I will address the procedural issue concerning the reply. Respondent contends that the reply sets forth new issues and material which were not previously in the petition, and which do not respond to allegations contained in respondent's answer. The record supports respondent's argument. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Appeal of Aarseth, 33 Ed Dept Rep 522; Application of Verity, 31 id. 485; Appeal of Pronin, 27 id. 203). Therefore, I will not consider the material belatedly added by petitioner in the reply which is not responsive to respondent's answer.

Turning to the merits of the appeal, petitioner objects to the information presented in the newsletters and claims that the actual costs to district residents are much higher than represented by respondent. However, respondent denies that it misstated the cost of the proposed bond issue and contends that it considered a variety of factors, including equalization rates, differing assessment practices in the six towns comprising the district, and homestead and non-homestead tax rates in computing its cost estimates.

The record supports respondent's assertion that it considered these varying factors in arriving at the figures it presented in the newsletters. While petitioner may take issue with the method by which respondent arrived at those figures, it does not follow that they are necessarily incorrect or deceptive. Petitioner asks that I overturn the results of the vote, yet he presents no evidence other than his interpretation of the calculations as proof of the facts he alleges. The results of a school district vote will not be set aside in the absence of evidence of the probability that the alleged irregularities affected the outcome of the election (Matter of Boyes v. Allen, 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Donnelly, 33 Ed Dept Rep 362; Appeal of Brower, 29 id. 145). Based on the record before me, I find no basis to overturn the district vote on the bond issue.

I also reject petitioner's contention that respondent improperly advocated for the passage of the bond issue. My review of the newsletters in question indicates that they provide factual information that does not exhort the electorate to vote in a particular way (Phillips v. Maurer, 67 NY2d 672; Appeal of Ruiz, 32 Ed Dept Rep 107; Appeal of Loriz, 27 id. 376). Using district resources to provide the electorate with objective facts is permissible under Phillips v. Maurer. Accordingly, I find nothing improper in respondent's distribution of the newsletters.

I have reviewed the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE