Decision No. 13,545

(January 31, 1996)

Victor M. DeBonis, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner seeks the removal of the president of the Board of Education and the superintendent of the Shenendehowa Central School District ("respondents") pursuant to Education Law '306. The application must be denied.

Petitioner, a resident of the Shenendehowa Central School District, alleges that respondents used district resources to improperly encourage district residents to vote for its revised budget in violation of Phillips v. Maurer (67 NY2d 672). Specifically, petitioner challenges the contents of a newsletter mailed to district residents in advance of its July 19, 1995 revised budget vote. Petitioner objects to a quotation by the board president that the board was "committed to gaining community support," a note indicating that all board members supported the revised budget, and a statement that the proposed budget would "continue to provide strong academics, student support, extracurricular activities, and interscholastic sports." Consequently, although the budget was defeated, petitioner seeks the removal of James Grande as board president and of John Yagielski as superintendent for the unlawful use of public funds.

Respondents deny the allegations and contend, among other things, that petitioner fails to state a claim upon which relief can be granted and that removal under Education Law '306 is inappropriate because there was no willful violation or neglect of duty.

Based on the facts presented by petitioner, the appeal must be dismissed. While a board of education may not use school district funds to exhort the electorate to support a particular position in an election (Phillips v. Maurer, supra), it may distribute factual information (Appeal of Martino-Kraft, 34 Ed Dept Rep 441; Appeal of Carroll, 33 id. 219). A review of the flyer at issue indicates that it contains factual information: an article entitled "Voters to decide on revised plan on July 19" including itemized budget cuts and a quote from the board president stating that they were committed to gaining community support, a note indicating that all board members supported the revised budget, absentee ballot information, tax information by town, and voting date and location. It does not contain a request to support the budget or to vote for a particular outcome, which makes it clearly distinguishable from Phillips where a full page newspaper advertisement urged readers to vote "YES." It is also distinguishable from the State's promotion of its 1990 environmental bond act in which the messages "Keep New York Clean and Green" and "It is the ultimate selfless act" were found to be influential rather than informational (Schultz v. State of New York, 148 Misc.2d 677, aff'd and appeal by respondents dismissed as moot, 175 AD2d 356).

Furthermore, if, arguendo, the contents of the newsletter supported petitioner's contention that the board used district funds to influence the electorate, petitioner has failed to establish facts sufficient to warrant removal of the board president and superintendent pursuant to Education Law '306. In an appeal before the Commissioner of Education, petitioner has the burden to establish the facts upon which he seeks relief (8 NYCRR 275.10; Application of Cobler, 35 Ed Dept Rep ___, Decision No. 13,506 dated November 6, 1995). Education Law '306 authorizes the Commissioner of Education to remove a member of the board of education for a willful violation or neglect of duty under the law (Education Law '306(1); Application of Cobler, supra; Application of Borges, 34 Ed Dept Rep 459). To be considered willful, respondents' actions must have been intentional and with a wrongful purpose (Application of Cobler, supra; Application of Borges, supra). Petitioner has failed to establish that respondents' actions were motivated by a wrongful purpose. To the contrary, respondents' attorney indicates respondents acted in good faith on the advice of counsel. Therefore, respondents' actions, if improper, would have lacked the willfulness necessary for removal from office (Appeal if McCall, 34 Ed Dept Rep 29; Application of Landgrebe, 32 id. 49).

THE APPEAL IS DISMISSED.

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