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Decision No. 13,785

Appeal of RICHARD HARWOOD, on behalf of his daughter, MEAGAN, from action of the Board of Education of the Longwood Central School District concerning the conduct of an annual district meeting.

Decision No. 13,785

(June 25, 1997)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Warren H. Richmond, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to set aside the voters' approval of Proposition 4, which limits pupil transportation to nonpublic schools, at the district's May 21, 1996 annual meeting. The appeal must be dismissed.

In May 1995 the voters of respondent's school district approved a proposition which reduced the maximum distance for private and parochial school transportation from 28 to 15 miles. Opponents of the proposition brought an appeal to the Commissioner of Education asserting that the wording of the proposition was misleading and that the estimated savings failed to factor in the cost of State aid. On December 21, 1995, I dismissed the appeal (Appeal Maillard, 35 Ed Dept Rep 229). The reduced transportation was scheduled to commence in September 1996. In March 1996, community members submitted two petitions to respondent seeking reconsideration of the May 1995 vote. After review by counsel, respondent rejected these petitions because they failed to set forth the cost of the proposed increased transportation.

One of the petitions read:

"Shall the Board of Education be authorized to maintain transportation for resident school children attending schools within the current guidelines, (Vote Yes), or reduce the limit to 15 miles (Vote - No).

The second petition read:

"Shall the board of education be authorized to maintain transportation for resident pupils attending private and parochial schools to a distance of twenty six (26) miles."

The individuals submitting the two petitions sought to reinstate the 28 mile limit for private and parochial school transportation. In an effort to accommodate the desire of these community members to have the voters reconsider the district's nonpublic school mileage limitation, respondent directed its counsel to assist in drafting a legally acceptable proposition for that purpose. Respondent's counsel drafted the following proposition:

"Shall the board of education be authorized to maintain the voter approved school policy which provides transportation for resident pupils attending private and parochial schools at the State mandated maximum distance of fifteen (15) miles, effective July 1, 1996 for a savings of $230,000 to the district?

This proposition was furnished to members of the community, a petition was circulated and the proposition was placed on the May 21, 1996 ballot as Proposition 4. The proposition was passed by a vote of 2,011 to 1,584.

Petitioner contends that respondent rejected clear and unambiguous language originally proposed by community members and that counsel for respondent drafted language which was unclear in that it misstated the savings to the district by not accounting for State aid. Petitioner contends that respondent coerced community members into accepting the language drafted by respondent's counsel. Petitioner further asserts that respondent improperly used public funds to influence the vote on Proposition 4 and engaged in electioneering by distributing its budget brochure at the polling places.

Respondent maintains that at no time did any board member indicate that the only acceptable proposition was the one prepared by its counsel. Respondent contends that in an effort to assist the proponents of increasing private and parochial school transportation, respondent facilitated the drafting of legally acceptable language for a new proposition. Respondent contends that the two propositions prepared by members of the community were defective by virtue of the fact that the cost of the increased transportation was not set forth in either of the submitted petitions. Respondent denies that it attempted to influence the vote on Proposition 4 and further contends that the information it distributed was factual and proper in all respects.

With respect to the first version of the proposition submitted by community members, I find that respondent was justified in refusing to place the proposition in that form on the ballot because, as maintained by respondent, it did not conform with the requirements of Education Law '2035(2) because it failed to provide a specific appropriation. In addition, the Yes/No option was also confusing and would not have accomplished the objectives of the drafters because this version of the proposition referred to maintaining transportation for resident school children attending schools" within the current guidelines." (emphasis added). In March 1996, children were eligible for transportation to a distance of 28 miles through the end of the 1995-1996 school year. In accordance with the 1995 vote, children would be eligible for reduced transportation commencing with the 1996-97 school year. Therefore, the use of the phrase "current guidelines" was confusing, at best.

The second version of the proposition submitted by community members was also properly rejected by respondent because it did not contain an appropriation and in addition, it referred to maintaining transportation to a distance of 26 miles (sic) when that policy had already been modified for the upcoming school year and what was actually contemplated was a revote on that issue.

Proposition 4, which was ultimately voted upon and approved by the voters, clearly indicated that the voters were being asked to, in effect, confirm the 1995 vote for reduced private and parochial school transportation by a yes vote. Petitioner is correct in pointing out that the proposition does not state on its face the effect of a no vote and what transportation would have been approved by such a no vote. Nevertheless, I find that respondent acted within its authority. Education Law '2035(2), which sets forth the manner in which propositions are to be submitted by anyone other than the board of education, provides that a proposition may be rejected if it does not fall within the power of the voters, or if it calls for the expenditure of monies and fails to include the necessary specific appropriation. The two original propositions submitted by parents and community members failed to provide for an appropriation for the increased transportation. Therefore, it was not an abuse of discretion on the part of respondent to reject the propositions (Appeal of Riordan, et al., 27 Ed Dept Rep 182; Matter of Gilbert, 19 id. 166).

Petitioner has not proven that the proponents of increased transportation were "coerced" into accepting the language drafted by respondent's counsel. Community members were free to submit alternative wording which met legal requirements. Contrary to petitioner's claim, the version of the proposition prepared by respondent's counsel was not necessarily deficient because the appropriation failed to take into account State aid. Proponents of increased transportation had the option to submit a revised proposition that contained an appropriation taking State aid into account. Had respondent rejected such a proposition, then the issue of the proper appropriation would be properly before me. In this instance, the record indicates that proponents of increased transportation chose to adopt the version drafted by respondent's counsel. As I indicated in Appeal of Maillard, 35 Ed Dept Rep 229, when this issue was raised in connection with the 1995 vote to reduce the district's obligation to transport pupils to nonpublic schools, an appropriation that does not take into account State aid is not inherently misleading. A conclusion must depend on all of the attendant circumstances. Petitioner has not proven that sufficient numbers of voters were mislead, thereby affecting the outcome of the election. The proposition passed by over 400 votes and petitioner has only submitted one affidavit, i.e., his own, indicating that he would have voted differently if not mislead by the proposition's wording. Since a school district election will not be set aside in the absence of proof that the alleged misconduct 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; Appeal of Brower, 29 id. 145), I will not set aside the election on this basis.

With respect to petitioner's remaining contentions, the record indicates that two weeks before the scheduled vote, respondent published and distributed an edition of Longwood Life containing information on the budget and propositions before the voters, including Proposition 4. This issue was also posted within 100 feet of the polling place on the day of the annual meeting. In Matter of Phillips v. Maurer, 67 NY2d 672, 499 NYS2d 675, the Court of Appeals held that a board of education may use public monies to provide voters with factual information to assist them in making informed decisions with regard to a proposed school budget proposition. However, a board of education may not use school district funds to exhort the electorate to support a particular position or candidate. The record in this case indicates that the literature challenged by petitioner conveyed factual information to the voters concerning the meaning and effect of Proposition 4 and the reason for the revote. There is no evidence in the record to support petitioner's assertion that the literature was other than factual or that it urged voters to cast their ballot in a particular manner. Accordingly, there is no basis to support petitioner's contention that respondent was guilty of improperly electioneering in violation of Education Law '2031-a.

THE APPEAL IS DISMISSED.

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