Decision No. 13,625

(June 14, 1996)

Rains & Pogrebin, P.C., attorneys for respondent, Richard K. Zuckerman and Sharon N. Berlin, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges the dissemination of information by the Board of Education of the Syosset Central School District ("respondent") and its school officials regarding a bond referendum. The appeal must be dismissed.

Petitioner is the parent of a student who attends Baylis Elementary School in respondent's district. In early 1995, respondent decided to present a bond referendum to district voters, seeking authority for the district to borrow $8.3 million to fund various capital projects, including the replacement of boilers and the purchase of portable classrooms for the district's elementary schools. On July 23, 1995, the Executive Committee for the district's Parent Teacher Association (PTA) voted to support respondent's proposed bond referendum.

On September 6, 1995, petitioner's son brought home a PTA flyer that urged district voters to support the bond vote. On September 7, 1995, petitioner attended a PTA meeting at the elementary school. The superintendent and two board members, including the board vice-president, attended the meeting and made a presentation about the upcoming bond referendum. The PTA distributed the same flyer at this meeting. On September 8, 1995, petitioner sent a letter to respondent alleging that the PTA flyer violated the law by exhorting a partisan position, and also sent a letter on that same date to the superintendent requesting an explanation.

On September 13, 1995, petitioner's son brought home a letter from the principal explaining that the PTA flyer was inadvertently sent home with students. That same day, petitioner sent a letter to the district superintendent and respondent objecting to the wording of the principal's letter. In a memorandum dated September 14, 1995, respondent's deputy superintendent reminded all principals that district employees may not disseminate or assist in the dissemination of information that urges a particular position on a vote. On September 20, 1995, petitioner received a letter from the district superintendent advising petitioner that the district had taken steps to address his concerns.

Petitioner commenced this appeal on September 27, 1995. The referendum was submitted to the voters on September 28, 1995 and was approved, 2084 to 650.

Petitioner seeks an order: directing respondent to amend its Education Law '414 policy; declaring invalid the election results; censuring the board for authorizing the payment of the costs for the printing and mailing of the bond brochure and compelling the district to inform the electorate of the improper distribution of partisan materials, the actual cost of the bond, including the cost of each item in the bond and the probable life of each item, the costs of the printing, writing and distribution of the bond brochure, and that school boilers are reliable. Petitioner also requests that the Commissioner remove the superintendent, board president and board vice-president.

Respondent contends that its actions were proper and that petitioner harbors animus against the school district, since his child has been suspended from school. Respondent also asserts that petitioner has failed to join and serve necessary parties and that the petition fails to meet the requirements of 8 NYCRR 277.1. Finally, respondent contends that the petition fails to set forth sufficient evidence to warrant the removal of the superintendent, board president and board vice-president.

Before reaching the merits, I will address respondent's procedural arguments. Respondent notes that petitioner has raised new claims in his reply and introduced new evidence that was available at the time the petition was filed. My review of the reply finds that petitioner has also amended the relief he requests. The purpose of a reply is to respond to new materials or affirmative defenses set forth in the answer (8 NYCRR '275.14), not to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Appeal of Crawmer, 35 Ed Dept Rep 206; Appeal of Aarseth, 33 id. 522; Application of Verity, 31 id. 485). Therefore, I will not consider the new claims, evidence and amended relief requested by petitioner in his reply.

Respondent also contends that petitioner has failed to serve and join as parties to this proceeding those school officers that he seeks to remove from office. In his reply, petitioner contends that he did not bring a removal action under Education Law '306 and 8 NYCRR 277 but brought an appeal under Education Law '310 and 8 NYCRR 275 and requested that the Commissioner institute removal proceeding on his own motion if the Commissioner believes removal is necessary. Since petitioner did not comply with the applicable regulations regarding the removal of school officials and denies that he seeks their removal, I will not address this affirmative defense.

Turning to the merits, petitioner alleges that respondent improperly distributed partisan PTA materials in violation of Phillips v. Maurer, 67 NY 2d 672, 499 NYS2d 675, and related decisions (Appeal of Allen, 32 Ed Dept Rep 69). Although a board of education may provide information to voters concerning a proposed budget or proposition, school district funds may not be used to exhort the electorate to support a particular position. In this case, respondent acknowledges that it erroneously permitted the PTA to distribute a partisan flyer. The principal apologized for the error in a letter to parents, and while petitioner finds the wording of that apology offensive and partisan, I do not find the principal's letter inappropriate. The record also indicates that respondent has taken steps to insure that this type of activity does not take place in the future. While petitioner also asserts that the flyer was copied on school grounds at school district expense, affidavits from the individual responsible for it indicate that it was done privately and not at district expense. Since petitioner presents no proof to the contrary, I accept the representation that the PTA flyer was not copied using district facilities or at the district's expense.

Petitioner also objects to the presence of the superintendent and board members at the September 7, 1995 PTA meeting and believes that their presentations constituted improper electioneering. Respondent presents affidavits of the individuals involved attesting that they did not exhort PTA members to vote for the bond referendum. While petitioner finds the presentation itself improper and objects to the graphics used in the presentation, there is no basis in the record for me to determine that the school officials involved engaged in improper electioneering.

I also reject petitioner's contention that respondent improperly advocated for passage of the bond issue by the language used in its informational brochure. Petitioner contends that the brochure used subjective words and was therefore partisan. My review of the brochure indicates that while respondent may have taken some liberties in its choice of words, the brochure does not itself advocate a "yes" vote. Petitioner also raises alleged violations of Local Finance Law '41.10. That section requires notice of the bond vote and a breakdown of costs. Petitioner appears to be confusing the notice required under that section with the bond brochure sent by the district. As respondent notes, the information on project costs were made widely available prior to the vote.

Finally, petitioner asks that I overturn the bond vote on the basis of the irregularities that 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 Crawmer, 35 Ed Dept Rep 206; Appeal of Donnelly, 33 id. 362). In a vote on a capital project and the financing thereof, the proof must contain affidavits or statements from individuals who voted in favor of the proposition that their vote would have been otherwise but for the alleged misconduct (Appeal of Bach, 32 Ed Dept Rep 273; Appeal of Hable, 30 id. 73). Petitioner submits no proof that anyone who voted for the financing would have voted differently but for the alleged misleading information. In this case, the referendum passed by a margin of 1434 votes. Based on the record before me, I find no basis to overturn the district vote on the bond issue.

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

THE APPEAL IS DISMISSED.

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