Decision No. 13830

(September 2, 1997)

MILLS, Commissioner.--Petitioner appeals certain actions taken by respondents with respect to the annual district meeting held on June 5, 1996. The appeal must be sustained in part.

Petitioner is a resident, taxpayer and parent of children attending school in the East Irondequoit Central School District. Petitioner is also a member of respondent board of education. He contends that respondents permitted the use of school district personnel, property, facilities, equipment and funds to advocate for adoption of the district's proposed budget and for the election of certain candidates to the board of education, in violation of Article VIII, "1 of the State Constitution.

The proposed budget was adopted at the June 5, 1996 annual meeting by a 134 vote majority out of 3,728 votes cast. While petitioner does not challenge the results of the vote, petitioner contends that respondent Kehoe failed to stop the aforementioned instances of alleged partisan activity, despite notification by petitioner of such activities and in knowing and willful disregard of the decisions and directives in Appeal of Pucci, 31 Ed Dept Rep 3, and Appeal of Allen, 32 Ed Dept Rep 69. Petitioner requests that respondent Kehoe be removed as superintendent of schools and/or fined. In the alternative, petitioner requests that respondents be reprimanded and directed to cease using school facilities for partisan campaigning.

Respondents contend that they have complied with the Pucci and Allen decisions, and deny that they have engaged in or permitted partisan campaign activity with respect to the budget vote. Respondents further contend that certain of the activities petitioner complains of were permissible means to increase voter turnout and did not constitute partisan campaign activity. Respondent alleges that all of its actions were informational or educational only. Respondent also contends that some of the allegations of the petition should be dismissed as untimely.

Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of. Respondents contend that since the appeal was instituted on July 1, 1996, those allegations of the petitioner concerning events that took place prior to June 1, 1996 should be dismissed as untimely. However, all of petitioner's allegations relate to alleged actions of the respondents taken with respect to a series of events occurring in May and early June and culminating at the annual meeting on June 5, 1996. Under these circumstances, it would be unreasonable and detrimental to the efficient resolution of petitioner's claims to require that petitioner institute separate appeals with respect to this series of events to meet the 30 day requirement set forth in "275.16. Furthermore, of the events that occurred before June 1, 1996, all but one occurred in the week immediately preceding June 1, and the remaining event occurred at the most in "mid-May". In view of the foregoing, I decline to dismiss for untimeliness the allegations concerning events that occurred before June 1, 1996.

I note that petitioner's reply, in addition to responding to matters raised in respondents' answer, also asserts new allegations and raises additional issues that were not raised in the petition. The purpose of a reply is to respond to new materials or affirmative defenses set forth in the answer, and a reply may not be used to buttress allegations in the petition or to add assertions or exhibits that should have been included in the petition (Appeal of Akshar, 35 Ed Dept Rep 424). Accordingly, while I have reviewed petitioner's reply, I have not considered those portions that contain new allegations and exhibits that were not originally contained in the petition.

I also note that respondents have requested permission to serve and file a supplemental affidavit to correct an error in Exhibit E of respondent Kehoe's affidavit. It appears that the error was inadvertent, and therefore I have accepted for filing the supplemental affidavit and corrected exhibit.

While a board of education has a right to present informational material to the voters concerning a proposed annual budget or propositions (Education Law "1716, Appeal of Weaver, 28 Ed Dept Rep 183), the use of district resources to distribute materials designed "to exhort the electorate to cast their ballots in support of a particular position advocated by the board" violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Maurer, 67 NY2d 672; Appeal of Allen, 32 Ed Dept Rep 69). Even indirect support has been deemed improper (Stern v Kramarsky, 84 Misc 2d 447; Appeal of Allen, supra; Appeal of Weaver, supra), and school boards must ensure that they do not lend such indirect support to partisan activities through their communications channels (Appeal of Friedman, 32 Ed Dept Rep 601).

In Appeal of Pucci, supra, Commissioner Sobol directed respondent East Irondequoit Central School District to discontinue its Voter Involvement Program (VIP), which allowed voters at the conclusion of a special district meeting to "vote" for particular students to receive prizes to be awarded by the PTA, because it presented the appearance of improper partisan activity contrived to encourage the parents of public school children to support a proposed school bond issue. In Appeal of Allen, supra, the Commissioner sustained an appeal alleging that respondent East Irondequoit Central School District permitted the distribution of partisan campaign materials (PTA flyers) on school premises and ordered respondent to amend its policy concerning the use of the school house and grounds to prohibit the distribution of partisan literature. On March 29, 1993, in response to the Allen decision, respondent board of education adopted a revised policy concerning community use of school facilities.

Petitioner alleges that during the week prior to and up to the annual meeting, students were disseminating partisan campaign materials at the Durand Eastman Elementary School (Durand School) and that respondents permitted such activity to continue even after petitioner notified respondent superintendent. The record establishes that during the week leading to the date of the annual meeting on June 5, 1996, the daughter of a candidate for reelection to the board of education had distributed "key cards" on the premises of the Durand School. Key cards are business-card sized campaign literature which list the names and ballot positions of her father and two other board candidates running under the acronym "EXCEL" or "EXcellence in Community & Educational Leadership", together with the words "Vote June 5th, 9:00 AM to 9:00 PM Eastridge Junior High School". Petitioner called respondent superintendent on June 3 and June 5, 1996 to complain about the distribution of the key cards. It appears that the building principal at the Durand School at first directed the student to stop distributing the cards on school premises. Subsequently, the school attorney advised respondent superintendent of his opinion that the school could not constitutionally prohibit a student from exercising her First Amendment rights to express her support of a political candidate, provided that there was no school personnel or public funds involved in such expression. Accordingly, respondent superintendent informed petitioner that she understood the activity of the student was proper since there was no school personnel or public funds involved.

In Tinker v. Des Moines Community School District, 393 US 503, the Supreme Court stressed that students do not "shed their constitutional rights to freedom of speech or expression at the school house gate." A school district may regulate the time, place, manner and duration for students to distribute literature on school grounds, but may regulate the content of literature to be distributed on school grounds by students only to the extent necessary to avoid material and substantial interference with the requirements of order and discipline in the operation of the school. (Eisner v. Stamford Board of Education, 314 F Supp. 832, modified on other grounds, 440 F2d 803; Matter of Panarella et al. v. Birenbaum et al., 32 NY2d 108; Appeal of Bd. of Ed. of Wappingers Central School District, 34 Ed Dept Rep 323). In Appeal of Beil and Scariati, 26 Ed Dept Rep 109, Commissioner Ambach upheld the right of student editors of a student newspaper funded by a school district to editorialize in favor of specific school board candidates as well as the proposed school district budget, provided that the school district did not act to influence the content of the editorials. Accordingly, students may distribute literature on school premises which expresses their opinions on school budget votes and elections to the board of education, subject to reasonable regulation by the school district of the time, place, manner and duration of such activity and provided that the school district does not otherwise act through its personnel or funds to support such activity. Therefore, with regard to this appeal, respondents' action in permitting the student to distribute the literature on school premises was not in itself improper. However, I note that such activity could be interpreted as a violation of the school district's policy that "[s]chool facilities may not be used to distribute partisan literature on school issues or votes to students for their parents." Respondents contend that the policy was adopted in response to the Commissioner's decision in Appeal of Allen, supra, to prevent the school district from permitting the use of its "established channel of communication" by outside groups to advocate partisan political purposes, and is not intended to apply to distributions by students acting without the support of the school district. I find respondents' interpretation of its policy to be reasonable and consistent with the First Amendment constitutional concerns discussed above and I therefore find no violation of such policy as alleged by petitioner. Nevertheless, respondent board of education may wish to consider an amendment to its policy to more clearly state its applicability to the school district and its employees and not students. Furthermore, respondent may wish to consider further amending its policy to enact appropriate time, place, manner and duration regulations on the distribution of campaign literature by students.

Petitioner alleges that during a science fair held at the Durand School the day before the election, partisan campaign materials were placed on car windshields and that at least two science projects had partisan campaign materials attached to them. In an appeal to the Commissioner, the petitioner bears the burden of demonstrating a clear legal right to the relief requested and must establish facts upon which he relies by presenting clear and convincing evidence (Appeal of McDougald, 34 Ed Dept Rep 424). With regard to the placement of campaign materials on cars parked in the elementary school parking lot, there is nothing in the record which establishes that the respondents were aware of, sanctioned or otherwise provided support to this activity at the time it occurred. However, since respondent board of education is ultimately responsible for incidents occurring on its premises, it should take affirmative steps to ensure that, in the future, its parking lots or other school district facilities are not used by outside groups for the distribution of partisan campaign literature (Appeal of Friedman, supra). With regard to the attachment of campaign materials to the science fair projects, petitioner provides the affidavit of one individual attesting to their presence on two science projects, while respondents provide several affidavits of individuals who were present at the science fair and did not see any materials placed on the science projects. If such incident occurred, it appears to have been of minor extent and influence and there is nothing in the record to establish that respondents were aware of, sanctioned or otherwise provided support to the activity. Furthermore, the First Amendment free speech rights of the student may be implicated in such activity. As noted above, respondent board may wish to consider enacting appropriate time, place, manner and duration regulations concerning student distribution of literature on school premises. However, I find no indication that respondents have acted improperly.

Petitioner next alleges that respondents deliberately scheduled several concerts at the voting site of the Eastridge High School on the day of the annual meeting to attract voters who were favorably inclined to support the proposed budget. Petitioner also alleges that the scheduling of the concerts caused traffic and parking difficulties which deterred some people from voting. Respondents contend that the holding of the concerts at the time and place of the annual vote was a legitimate means of increasing voter turnout and involving the community in school events. The mere holding of concerts while the polls are open is not perse improper, provided that notice of the concerts is given to all district residents in the same manner and that respondent did not otherwise engage in "targeting" potential voters who might be more inclined to support the budget than other groups, such as through the use of special notices sent only to parents of students (Appeal of Sowinski, 34 Ed Dept Rep 184). The record indicates that notice of the concerts was provided to all district residents through the school district's May newsletter and there is nothing in the record to indicate that special notice of the concerts was provided only to students, their parents and families. Furthermore, it appears from the record that the traffic and parking difficulties were the unintentional result of a scheduling oversight. Accordingly, petitioner has failed to carry his burden of proof with regard to the allegations concerning the concerts (Appeal of Sowinski, supra).

Petitioner alleges that the day before the annual meeting respondent Kehoe hosted a free breakfast to students who were eligible to vote for the purpose of influencing them to vote in favor of the proposed budget. The record indicates that the school district invited all students who were 18 years old or older to meet with Superintendent Kehoe on June 4, 1996 from approximately 8:00 to 8:40 AM for the purpose of informing the students about the budget and the budget vote and that coffee, milk, juice, bagels, danish and muffins were served. The holding of a meeting between school officials and students who are eligible to vote in order to present nonpartisan information pertaining to the annual meeting and the school district budget is not, in itself, improper (Appeal of Canham, 19 Ed Dept Rep 254). Respondents allege that the meeting was solely for informational and educational purposes and did not favor any particular partisan position, and there is nothing in the record which indicates otherwise, beyond petitioner's unsupported allegations. Provided that respondents do not use the occasion to advocate a partisan position, respondents may hold the breakfast as a means to educate and inform students who are eligible to vote and as part of an effort to increase voter participation. Therefore, since petitioner has failed to establish that respondents engaged in partisan advocacy during the meeting, I find no indication that respondents have acted improperly.

Petitioner alleges that during the week of May 27, 1996, in an attempt to influence parents to vote in favor of the proposed budget, respondents permitted PTA sponsored yellow strips of paper with the slogan "HAVE A HEART - DO YOUR PART" to be distributed to sixth grade students at the Durand School, with the request that each student have a parent sign the strip and return it to their teacher. Petitioner contends that such activity constitutes impermissible targeting of voters who were likely to favor the proposed budget. Respondents deny that the strips were sponsored by the PTA, but rather were circulated as part of a school district activity to encourage voter turnout. Respondent contends that the phrase "have a heart" does not suggest or request an affirmative vote on the proposed budget, but instead suggests that parents should participate in the annual meeting and budget vote. Nevertheless, while it is possible to interpret the phrase as respondent contends, it is also possible, and is arguably more likely, to interpret the phrase as eliciting sympathy or compassion in support of the proposed budget. Therefore, the distribution of the strips presents at least the appearance of improper partisan activity and such practice should be discontinued in future budget votes.

Petitioner alleges that before and including the day of the annual meeting and budget vote, a sixth grade social studies teacher at the Durand School falsely told or implied to students that they would not receive textbooks if the budget did not pass, in an attempt to influence a positive vote on the proposed budget. Respondents allege that the superintendent's investigation established that a sixth grade elementary teacher, sometime in mid-May 1996, had erroneously told her students that library books, which are used in their social studies course, would be cut if there was no budget, but that she was thereafter informed by the building principal that books are a contingent expense and would not be cut. There is nothing in the record to indicate that the teacher knowingly made the erroneous statement, or that respondents provided any inducement or other support to the teacher to make such statement, and it further appears from the record that this was an isolated incident which respondent Kehoe, upon being notified, promptly investigated and resolved. I find no improper actions by respondents with respect to this allegation.

Petitioner alleges that on or about June 4, 1996, certain students at the Durand Eastman Elementary School were instructed to prepare letters favorable to the budget, have their parents read and sign the letter and that a signed, returned letter would result in an extra 5 points on a social studies exam. It appears from the record, however, that the social studies teacher awarded the extra credit to students who returned the "HAVE A HEART" slips with their parents' signatures, as a social studies class participation project on the theme of "citizenship". As discussed above, the distribution of the slips presents the appearance of improper partisan activity and should be discontinued in any future school district votes. Accordingly, extra credit should not have been given in connection with this activity. Nevertheless, there is nothing in the record which establishes that respondents initiated, supported or acquiesced in the giving of extra credit in connection with the distribution of the paper slips. Respondent Kehoe alleges in her affidavit that she was unaware of the allegations until she was served with the petition commencing this appeal, and that she then conducted an investigation.

With regard to petitioner's remaining allegations concerning the letters, respondents provide the affidavits of the three elementary teachers involved all of which attest that they did not tell their students to write letters in favor of the proposed budget. The sixth grade elementary teacher attests in her affidavit that she assigned her students to write the letters as part of the language arts curriculum and that the letter was to be a general reminder to parents to vote and was not meant to tell the parents to vote in a particular way. Respondents also provide the affidavit of a student which supports the teachers' statements. On the record before me, I find that petitioner has failed to sustain his burden of proof with respect to his allegation that teachers at the Durand Eastman Elementary School instructed their students to prepare letters favorable to the budget and distribute them to their parents, in exchange for extra credit. In any event, there is nothing in the record that establishes that respondents initiated, supported or acquiesced in any such conduct. To the contrary, respondent Kehoe conducted an investigation upon being informed of the allegations.

Petitioner seeks the removal of respondent Kehoe as superintendent of schools based upon the alleged irregularities discussed herein. Education Law ?306 authorizes the Commissioner of Education to remove a superintendent of schools as well as a member of a board of education for willful violation or neglect of duty under the law. To be considered willful, respondents' actions must have been intentional and with a wrongful purpose (Application of Brousseau, 35 Ed Dept Rep 291; Application of Cobler, 35 id. 176). Upon the record before me, I do not find that respondent Kehoe's actions rose to the level of willful misconduct to justify her removal from office. Nevertheless, respondents must take actions consistent with this decision with respect to future elections and school votes.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent refrain from any future distribution of the "HAVE A HEART - DO YOUR PART" paper strips in connection with its elections and budget votes.

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