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Decision No. 13,774

Appeal of CAROLE LAWSON from actions of the Board of Education of the Hicksville Union Free School District regarding a board resolution and rejection of a voter petition.

Decision No. 13,774

(June 9, 1997)

Guercio & Guercio, attorneys for respondent, Gary L. Steffanetta, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals certain actions of the Board of Education of the Hicksville Union Free School District ("respondent"). The appeal must be dismissed.

At a public meeting held on March 27, 1996, respondent adopted a resolution authorizing, in accordance with '403-b of the Education Law, "the establishment of an off campus satellite high school program and facility located in the Broadway Mall for implementation effective September 1996." Respondent voted to establish the satellite program after considering a report entitled "Meeting the Goal of Educating At Risk 9th-12th Graders in Hicksville." The resolution also authorized a special education pre-kindergarten evaluation site at the facility and "inclusion of costs related to both the establishment of this program and the leasing of the off campus facility in the 1996-1997 school budget." At the March 27 meeting, a motion was made that costs related to the establishment of this program be placed in a separate proposition to be voted on by the voters at the upcoming May 21, 1996 election, but that motion was defeated 6-1.

On April 22, 1996, a petition signed by 574 voters was submitted to respondent for placement on the May 21, 1996 ballot. The petition contained the following proposition:

Shall the Hicksville Union Free School District in accordance with Section 403-b of the New York Education Law, authorize the establishment of an off campus Satellite High School program and facility to be located at the Broadway Mall for implementation effective September, 1996 at a cost of $425,394?

At a public meeting held on April 23, 1996, respondent refused to accept the petition based on advice of counsel.

Petitioner alleges that on May 14, 1996, the daughter of respondent's vice-president delivered envelopes to the music teachers on behalf of her mother. The music teachers allegedly directed students, during class time, to address the envelopes to their parents. The envelopes, containing a letter from the Hicksville High School Band Parents Association, were then mailed home. The letter "implored" parents to vote in favor of the proposed budget, stating that "[f]ailure to pass the budget will hurt everyone . . . ." The letter listed four programs and at least ten extracurricular activities that would be in jeopardy if the budget did not pass. The letter also stated that "senior citizens who are considering selling their homes may find it extremely difficult; the young families who are looking to purchase homes would think twice before considering a town where the school district is under austerity."

On May 21, 1996, respondent conducted its 1996-1997 Budget Vote and Annual Election. The vote concerned the budget, one proposition and two seats for members of the school board. The budget was defeated by a vote of 2319 to 1886. Subsequently, respondent passed a resolution calling for a special meeting for the resubmission of a budget. The second budget did not include any funding for an off campus satellite high school. Furthermore, on May 28, 1996, respondent publicly rescinded its March 27, 1996 resolution authorizing the satellite high school. Respondent decided not to establish an alternative high school, regardless of location.

On May 21, 1996, petitioner commenced this appeal and requested a stay of the implementation of respondent's March 27, 1996 resolution. I denied petitioner's stay request on June 7, 1996.

Petitioner requests that I: 1) declare that the establishment of the proposed satellite school is in violation of New York and United States laws; 2) void the result of respondent's May 21, 1996 budget vote; and 3) require respondent to accept a petition which would require the placement of the satellite school proposal on the ballot. Petitioner also requests that I permanently enjoin respondent from permitting the dissemination of political literature advocating the adoption of the school budget. Respondent contends that the petition is untimely and moot. In addition, respondent contends that petitioner has failed to meet her burden of proof on the issue regarding the dissemination of campaign literature, and maintains that it properly rejected the voters' petition.

I will first address the procedural issues. In her reply, petitioner has raised a new allegation and submitted new material regarding the use of PTA funds to print district newsletters. 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 add belatedly assertions that should have been in the petition. Therefore, I will not consider those portions of petitioner's reply containing new allegations and material not responsive to new material or affirmative defenses set forth in the answer. Respondent also submitted a sur-reply to respond to petitioner's reply. Pursuant to 8 NYCRR '275.3(b), I decline to consider respondent's sur-reply since it merely reiterates or rephrases respondent's positions in its answer and affirmation in opposition to petitioner's application for stay.

Respondent contends that the petition is untimely because it essentially challenges respondent's establishment of the satellite program by its resolution of March 27, 1996 and the petition was not filed until May 21, 1996, more than thirty days from the date of that resolution. Petitioner claims that the petition is timely because it was filed within thirty days of the rejection of the petition to put the proposition on the ballot. That rejection occurred on April 23, 1996. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR '275.16). Petitioner challenges respondent=s authority to establish the alternative high school program. That decision was made on March 27, 1996. Petitioner has offered no reason why she did not appeal respondent's resolution in favor of the satellite high school program within thirty days of the March 27 meeting. Thus, to the extent the petition challenges respondent's decision to establish that program, that portion of the appeal must be dismissed as untimely (Appeal of McCart, et al., 36 Ed Dept Rep 363). However, the portion of the petition concerning respondent's rejection of the voters' petition to place a proposition on the ballot is timely since it was filed within thirty days of the April 23 meeting. In addition, the issue of the dissemination of campaign literature is also timely, since the alleged incident occurred on May 14, 1996.

Respondent also asserts that the appeal is moot because the budget was defeated on May 21, 1996 and respondent rescinded its resolution establishing the satellite program on May 28, 1996. It is well settled that the Commissioner will decide only matters which are in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of McCart, et al., supra). The budget which contained funds for this program was defeated on May 21, 1996. Respondent's subsequent budget proposal eliminated funds for this program and respondent formally rescinded its resolution authorizing the program on May 28, 1996. Respondent also asserts that it has decided against establishing an alternative high school, regardless of location. Accordingly, those portions of the petition concerning the establishment of an off campus satellite high school program and petitioner's request to void the budget are no longer in controversy and must be dismissed as moot.

Even if those portions of the appeal were not dismissed on procedural grounds, they must be dismissed on the merits. Petitioner objects to the adoption of the March 27 resolution on several grounds. First, she claims that pursuant to Education Law '1709(7), respondent is not empowered to lease space not located on school grounds unless "the facilities of the district are overcrowded or damaged or destroyed . . . ." She claims that respondent made no attempt to establish or even allege compliance with this section. She asserts that the school district owns two school buildings which are leased out to private entities which could be used for a satellite program instead of leasing the off campus facility. In addition, she claims that there was an alternative high school program in the existing high school five years ago, thus the program could be incorporated into an existing building. Secondly, petitioner alleges that the planned site does not meet requirements for access for the physically disabled as required by the Americans with Disabilities Act. Thirdly, petitioner essentially argues that respondent is required to submit the issue of establishing a satellite program to the voters for approval.

Respondent clearly stated in its resolution that it was authorizing the leasing of space pursuant to Education Law '403-b, not '1709. Thus, respondent did not have to show that "the facilities of the district are overcrowded or damaged or destroyed" under '1709. Furthermore, whereas '1709 enumerates general powers of the board of education, '403-b deals specifically with leasing of school buildings and facilities. Section 403-b provides in pertinent part:

1) . . . The board of education of any union free or central school district is hereby authorized to enter into a lease with any person, partnership or corporation for use and occupancy of a building or facility, or a portion thereof, owned by such person, partnership, or corporation for use as a school facility provided that such building or facility is located within the school district and subject to the conditions set forth in this subdivision.

a) No lease shall be for a period of more than five years, except that the term of such a lease may exceed five years if the approval of the voters of the school district which will become the lessee is obtained before that lease is executed . . . (emphasis added).

b) The approval of the voters of the school district which will become the lessee shall be obtained for any capital project to be undertaken in a leased building or facility during the term of the lease, provided however that any such capital project shall be subject to the prior approval of the commissioner and shall only be approved where the commissioner finds that the need for such project has been established to the commissioner's satisfaction.

These provisions are among several that were added to '403-b by amendments to the law in 1992 (L.1992, c. 700, '1, eff. July 31, 1992). Among other things, the amendments gave boards of education authority to enter into leases with private parties as well as with other school districts, and changed the former requirement that voter approval was needed for all leases. Thus, under the revised '403-b(1)(b), it is clear that respondent was not required to submit this issue to the voters for approval since there is no evidence that the contemplated lease was for more than a five-year term. (Seealso, 8 NYCRR '155.8.)

Petitioner also argues that since the program budget for the alternative high school program included renovations to the proposed site, voter approval was required under '403-b(1)(b). Technically, since the entire program budget, including renovations, was included in respondent's budget proposal, it was submitted to voters on May 21, 1996. As noted above, respondent has rescinded its decision to proceed with this program and the budget including this program was defeated. However, should respondent decide to revisit this issue, it is reminded that it must comply with all applicable legal provisions.

Furthermore, under '403-b(1)(c) and 8 NYCRR '155.8(b), any lease is subject to approval by the Commissioner of Education. An application for approval must show compliance with all requirements for access by individuals with disabilities. Thus, the site's access provisions would have been subject to review and approval by the Commissioner. Petitioner's unsupported allegation concerning lack of compliance would not be grounds for dismissal at this stage.

Notwithstanding the provisions of '403-b(1)(a), respondent also asserts that it did not have to submit its resolution to the voters since its decision to establish an alternative high school program relates to educational programming. Decisions as to what instructional programs are to be offered in the schools within a district are within the discretion of the board of education (Education Law '1709(3); Appeals of Zaleski and Gimmi, 36 Ed Dept Rep 284; Matter of Reilly, et al., 20 id. 191). To the extent the March 27 resolution established a new educational program, it was properly within the purview of the board and not the voters, and did not need to be submitted to the voters for approval. Moreover, the proper vehicle for challenging respondent's authority to make a decision to establish the alternative program would have been a timely appeal to the Commissioner within 30 days of the March 27 resolution, not a petition to the board of education.

Two substantive issues remain. The first concerns respondent's rejection of the petition on April 23, 1996. Respondent was advised by counsel that a proposition for a vote on this proposal would probably confuse the voters since respondent had in fact already established a satellite high school program by passing the resolution on March 27. Respondent was further advised that the establishment of educational programs is a school board responsibility and thus, the proposition would be inappropriate for consideration by the voters. In addition, the proposition essentially called for an advisory vote, which counsel advised is discouraged by the Commissioner. Also, counsel advised that defeat of such a proposition would have no effect because the program had already been established. Furthermore, the proposed proposition also did not adequately describe what effect, if any, its passage would have on the school budget, namely, whether the budget would be increased or decreased. Petitioner argues that the petition was properly submitted and presents an issue which requires voter approval.

Petitioner is correct in stating that the petition contained more than the requisite number of signatures in compliance with Education Law '2008. That section requires a petition to be signed by 25 qualified voters or 5% of the number of voters who voted at the previous annual election. However, Education Law '2035 provides that "any proposition may be rejected by the [] board of education if the purpose of the proposition is not within the power of the voters" (Appeals of Cappa, 36 Ed Dept Rep 278). A board need not present all propositions submitted to it (Appeal of Osten, 35 Ed Dept Rep 160). Rather, it may refuse to place a proposition before the voters where the proposition is not a matter within the voters' discretion (Id.) As discussed supra, decisions as to what instructional programs are to be offered in the schools within a district are within the discretion of the board of education (Education Law '1709(3); Appeals of Zaleski and Gimmi, supra; Matter of Reilly, et al., supra). Thus, it was reasonable for respondent to conclude that it would be inappropriate to submit the issue of the establishment of the off site program to the voters and that the defeat of the proposition would have had no effect since respondent had already established the program by resolution. Respondent did not abuse its discretion or authority or act arbitrarily or capriciously in determining that the proposition submitted by petition was not within the power of the voters. Therefore, respondent acted within its authority under Education Law '2035 in rejecting the petition to put this proposition on the ballot (Appeals of Cappa, supra; Appeal of Martin, 32 Ed Dept Rep 567; Appeal of Riordan, et al., 27 id. 182). Moreover, to the extent that petitioner requests that I order respondent to accept the voters' petition and place the proposition on the ballot at the May 21, 1996 election, that issue must also be dismissed as moot since the election has already taken place and the relief sought cannot be granted (Appeal of DeMan, 35 Ed Dept Rep 171).

Respondent also contends that petitioner's final allegation concerning electioneering, i.e., that district funds were used to disseminate literature in favor of the budget, must also be dismissed as moot since the budget did not pass on May 21. Respondent denies any wrongdoing and asserts that petitioner has failed to meet her burden of proof on this issue because the allegation that a district employee distributed partisan flyers during instructional time is based on hearsay and not supported by affidavits from an individual with personal knowledge of the facts. Moreover, since the budget did not pass, respondent argues that any alleged wrongdoing was of no consequence.

Petitioner alleges that the board vice-president had her daughter deliver envelopes to the music teachers who directed students, during class time, to address envelopes to their parents. The envelopes containing a letter from the Hicksville High School Band Parents' Association (BPA) urging support of the budget were then mailed home. Although respondent argues that petitioner's claim that district funds were used to encourage a positive budget vote is based on hearsay, petitioner does submit an affidavit from her daughter that she was asked to address the envelope during class time. That envelope was later received by petitioner at home with the BPA letter in it. Respondent submits no affidavits to contradict this claim except the superintendent's affidavit that he did not knowingly permit any school district employee to distribute partisan flyers during instructional time.

It is well settled that while a board of education may distribute factual information regarding a vote or an election, the use of district resources to distribute materials designed to solicit favorable votes violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Mauer, 67 NY2d 672, 499 NYS2d 675 (1986); Appeal of Saba, 36 Ed Dept Rep 233; Appeal of Allen, 32 id. 69). Even indirect support, such as a school board giving a PTA access to its established channel of communication to parents to espouse a partisan position that the board itself was prohibited from doing directly, has been deemed improper (Stern v. Kramarsky, 84 Misc. 2d 447, 375 NYS2d 235 (1975); Appeal of Saba, supra; Appeal of Allen, supra). While prior cases concerned PTA distribution of flyers, which may have been copied at district expense, to students who then carried them home, in this case, it is the BPA and not the PTA who wrote the partisan letter and there is no direct evidence in the record about whether district funds were actually used in its production. In addition, since the letter was mailed, it is arguable whether the letter was actually distributed on school grounds. Nonetheless, it does appear that district resources were used to help distribute the letter, because students were directed by teachers to address the envelopes during class time. In addition, the envelopes were brought into class by the daughter of the board vice president, who was acting as her agent. Even if respondent had no knowledge of the actions of the board vice president, the BPA or the teachers, it is still ultimately responsible and must avoid even the appearance of improper partisan activity. In this appeal, since the budget was defeated, the BPA letter clearly did not affect the outcome of the election. However, respondent is admonished to take affirmative steps to ensure that teachers and staff do not espouse to students on school time partisan positions on matters pending before the voters, and that the district does not lend indirect support to partisan activities though its communications channels (Appeal of Friedman, 32 Ed Dept Rep 601).

Finally, petitioner's request that I declare that the establishment of the proposed satellite school is in violation of New York and United States laws is declaratory in nature. The Commissioner does not issue declaratory rulings in appeals brought pursuant to Education Law '310 (Appeal of McCart, supra; Application of Marshall, et al., 33 Ed Dept Rep 26; Appeal of Heizman, 31 id. 387).

THE APPEAL MUST BE DISMISSED.

END OF FILE