Mark Lewis Schulman, Esq., attorney for petitioners

MILLS, Commissioner.--Petitioners challenge the actions of the Board of Education of the Monticello Central School District ("respondent") regarding a bond referendum. The appeal must be dismissed.

In the fall of 1996, the Monticello Central School District ("district") distributed to voters within the district a twenty-page information packet entitled "Classroom 2000 Proposal." The primary goals of the proposal were to: provide a new grade 6-8 middle school and a continuation of the programs offered in the overcrowded middle school; provide educational technology to prepare students for the 21^st century; improve accessibility to school facilities for students and residents with disabilities; accommodate the impact of increasing enrollment on classroom space in all schools; alleviate the current undersized classrooms and lack of space; and address facility problems in each building in need of repair or replacement. The proposal called for renovations and additions at the district’s four elementary schools and high school and the construction of a new middle school. Of the total project cost of $41,806,021, the district projected the local share to be $23,112,617. The proposal also analyzed, for five towns in the district, examples of the additional projected annual tax payments necessary to support the annual principal and interest.

On December 11, 1996, the district conducted a referendum to bond "the construction of a new middle school, reconstruction and construction of additions to various school buildings, including site work and other incidental improvements, at a maximum estimated cost of $41,806,021; and providing that up to $41,806,021 be raised by a tax levy to be collected in annual installments, with District obligations to be issued in anticipation thereof." Although the parties dispute the actual vote count, they agree that the referendum was defeated by over 400 votes.

Respondent revised its proposal after this defeat, based in part on information obtained in exit surveys at the December 11 vote. The district held a public information meeting on March 19, 1997 and distributed to voters a new twelve-page information packet entitled "Classroom 2000-Reduced Proposal." The reduced proposal lowered costs from $41.8 to $34.1 million.

On March 26, 1997, the district conducted a second referendum on the reduced proposal to bond "the construction of a new middle school at the maximum cost of $19,813,281, and the construction of additions to reconstruction of various school buildings at a maximum estimated cost of $14,291,413, including site work and other incidental improvements, and providing that the aggregate amount of $34,104,694 be raised by a tax levy to be collected in annual installments, with district obligations to be issued in anticipation thereof." Although the parties dispute the actual vote count, they agree that the referendum passed by margin of at least 175 votes.

Petitioners, who are registered voters and real property taxpayers in the district, and who claim to have voted in the March 26 referendum, request that I invalidate the results of that referendum. Petitioners contend that prior to the March 26 referendum, the district distributed to voters literature which willfully and intentionally misrepresented the Classroom 2000-Reduced Proposal and its effect on the increase in tax rates required to finance the local share of the reduced proposal. The literature included the district informational packet entitled "Classroom 2000 – Reduced Proposal" and a district weekly news bulletin, distributed to parents of children in the district. Petitioners allege that but for this willful and intentional misrepresentation, the March 26 referendum would have been defeated. Petitioners contend further that the resubmission of the unfavorable December 11, 1996 bond referendum on March 26, 1997 was prohibited by law because both referenda were identical in taxpayer impact but for the alleged misrepresentations.

Respondent contends that petitioners' allegations are insufficient to state a claim upon which relief can be granted pursuant to 8 NYCRR "275.10. Respondent asserts that petitioners submit no proof that anyone who voted for the bond referendum would have voted differently but for the alleged willful and intentional misrepresentation and misleading information, or that anyone relied on that information in deciding how to vote. Although petitioners do not specifically accuse respondent of fraud, respondent asserts that petitioners have failed to prove any elements of fraud by misrepresentation or that the facts stated by respondent were untrue, recklessly made or made with intent to defraud. Respondent also alleges that petitioners Jill Schulman, Jeffrey Herzog and Miriam Herzog did not vote on March 26; petitioner Deborah Karasik did not vote on December 11, 1996, and that Miriam Herzog is not a registered voter and has not voted in any district election in the four years preceding the March 26 vote.

Analysis of election irregularities requires a two-part inquiry. Both prongs of this analysis must be satisfied for the Commissioner to annul the outcome of an election (Appeal of Santicola, 36 Ed Dept Rep 416; Appeal of Kushner, 36 id. 261; Appeal of Goldman, 35 id. 126). First, petitioners must prove improper conduct on the part of the respondent, such as a violation of Education Law or Commissioner's regulations (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). Second, petitioners must establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, 301 NYS2d 664, aff'd 26 NY2d 709, 308 NYS2d 873; Appeal of Roberts, 33 Ed Dept Rep 601), were so pervasive that they vitiated the electoral process (Appeal of Roberts, supra; Matter of Gilbert, 20 Ed Dept Rep 174), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Matter of Levine, 24 Ed Dept Rep 172, aff'd sub nom Capobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 112 AD2d 640, 492 NYS2d 157). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of an election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483). Petitioners have the burden of establishing all the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Pickreign, 28 Ed Dept Rep 163).

Petitioners assert that the irregularities in this case, namely the intentional misrepresentations and misinformation, are so pervasive in nature that they vitiated the electoral process and require that I invalidate the referendum. Specifically, petitioners allege that respondent misrepresented information and misinformed voters concerning the March 26 referendum in three respects. First, although respondent stated that maintenance costs were removed from the original proposal, those costs would be transferred to the annual budgets over five years, thereby actually substantially increasing the annual real property tax impact. Second, the district represented that the proposed lease of the old middle school by the Sullivan County BOCES ("BOCES") for $10,000,000 was firm, when in fact it was subject to approval by the Commissioner and execution of a signed lease. Thus, the projected revenue of $10 million was not assured but merely speculative, and the projected local share reduction was also speculative. Additionally, petitioners contend that respondent should have executed the lease prior to the March 26 vote. Third, the district failed to disclose that at the time it reimbursed BOCES for 30.9% of its administrative budget, so that in reality the district would net only $6,910,000, not $10,000,000, over the contemplated 20-year lease period. Additionally, petitioners contend that respondent permitted various parent-teacher associations (PTAs) to improperly distribute voting information to school children and their parents. Finally, petitioners assert in their reply that in the annual school board elections and budget vote on May 7, 1997, the budget was defeated and the board president lost her seat in retaliation for respondent's misrepresentations about the March 26 referendum.

The main thrust of petitioners’ allegations concerns the $10 million in BOCES revenue. Petitioners contend that respondent intentionally misled and misinformed the voters that it actually had a firm lease with the BOCES and that the revenue was assured, when neither of those facts was certain. They allege that a proposed lease does not exist; neither the district nor the BOCES board has passed resolutions approving the lease; the proposed lease is subject to voter approval by referendum; and the Commissioner has not approved or consented to the lease. Petitioners contrast the language presented in the first information booklet, Classroom 2000, with the language in the second booklet, Classroom 2000-Reduced Proposal. The cover letter for the first booklet, signed by respondent’s president and the superintendent, provided:

In contrast, the cover letter for the reduced proposal stated in part:

The next page of the booklet stated in part:

Also, on page 9 of the reduced proposal, along with the examples of projected annual tax payments, it was stated that "[t]he average annual payments for this reduced proposal are 40% less than those of the December 11, 1996 proposal."

In the March 14, 1997 edition of the Monticello Central School Weekly News Bulletin, distributed to parents of children in the district, there was an article entitled "Sullivan County BOCES re-confirms commitment to enter into long term lease of Monticello Middle School generating 10 million in revenue for the Monticello Central School District over a period of 20 years."

In addition, questions and answers about differences in the two proposals were distributed, although it is unclear whether such questions and answers were part of the March 14 Weekly News Bulletin, as petitioner contends, or a flyer mailed to district residents on March 17, as respondent’s exhibits show. One such question and answer contained the following:

Respondent argues that the information it distributed to voters, including the reduced proposal booklet, actually informed the voters of the BOCES intent to lease if the referendum for the new middle school passed, and in no way misled the voters or provided any misleading information. In her affidavit accompanying respondent’s answer, the superintendent, Eileen Casey, outlined the chronology of discussions between the district and the BOCES District Superintendent, Kevin Colpoys, regarding the BOCES’ intent to lease the middle school. Those discussions began in July 1996, with at least three meetings held prior to the December referendum. On December 3, 1996, Mr. Colpoys sent a letter confirming the BOCES’ intent to lease the middle school if the referendum passed. However, the letter did not include any financial details. Following the defeat of the December referendum, discussions with the BOCES continued. In February 1997, Mr. Colpoys appeared before respondent to discuss lease terms including net rental. Respondent met on February 18 and felt that the BOCES proposal was acceptable. By letter dated February 26, Mr. Colpoys reconfirmed the BOCES intent to lease the middle school if the second referendum was successful. The letter specified that:

Based on the long-term and on-going discussions between respondent and the BOCES, I find that it was not unreasonable for the district to include in its literature information about the BOCES’ commitment to lease the middle school, contingent on the passage of the referendum. The BOCES’ intent was included in the second, reduced proposal more specifically than in the first, because the district had the February 26, 1997, letter from Mr. Colpoys reconfirming the BOCES’ intent to enter a lease agreement and specifying the net financial terms of the lease arrangement. While respondent may have been overly optimistic in its depiction of the lease situation when it stated in the March 17 flyer that "the receipt of the $10 million is assured," it was not inaccurate for respondent to assert that it had a commitment from the BOCES. Furthermore, that flyer was only one piece of information. Based on my review of all the literature in both parties’ exhibits, I find that respondent’s information provided to voters, when taken as a whole, was not misleading. The information booklet clearly states that the BOCES plan is contingent on the approval of the referendum. To the extent that one could find otherwise, I find that it was not intentionally or willfully misleading. Accordingly, petitioners have failed to meet their burden of proving improper conduct by respondent.

Furthermore, while it is true that no lease was executed prior to the referendum, the reduced proposal booklet makes clear that the additional $10 million in revenue from BOCES was contingent on the passage of the referendum. Petitioners argue that even if the referendum passed, the BOCES and the district still had hurdles to overcome to assure the approval of the lease and the flow of the additional revenue. Specifically, petitioners contend that respondent was required to pass a resolution pursuant to Education law "403-a to lease the middle school property to the BOCES; determine the fair market rental value of the school; approve a lease with the BOCES; and obtain the approval or consent of the Commissioner. Petitioners also argue that the BOCES was required to pass a resolution pursuant to Education Law "1950(4)(p)(a) to lease the middle school; determine the fair market rental value of the property; determine if the arrangement is in the BOCES’ best financial interest; approve a lease; and obtain the approval or consent of the Commissioner.

Respondent admits that the Classroom 2000-Reduced Proposal booklet did not expressly refer to Education Law ""403(a) and 1950(4)(p)(a) or the requirements therein. However, it asserts that it was not required to comply with those requirements prior to voter approval of the referendum. I agree, and accordingly, I also decline to discuss the merits of those provisions. As respondent states, the requirements of those sections detail conditions precedent to the execution of a lease. There is no requirement that a lease be executed prior to a bond referendum. Moreover, since respondent made clear that the lease was contingent on the passage of the referendum, it is common sense to assume, and a reasonable voter could deduce, that the formalities of the lease agreement had yet to be worked out once the referendum passed. To the extent that the status of the lease may have been misleading by the omission of the lease execution requirements, it certainly does not appear to be willful or intentional. Moreover, as respondent points out, this information, along with information about provisions of the Education and Finance Law relating to district obligations or construction contracts, was not required to be provided in the information booklet.

With regard to the removal of the maintenance costs from the reduced proposal, respondent specifically informed the voters that these projects still had to be done and would be presented to voters in future annual budget submissions. There is nothing misleading about respondent’s position on this issue. With regard to petitioners' claim that respondent contributes 30.9% of BOCES’ administrative costs, so that the $10 million in expected revenue is really only $6.9 million, I find that respondent’s omission of this fact from the literature is not intentionally misleading. The district’s obligation to contribute to BOCES’ administrative costs continues and varies from year to year regardless of whether the lease arrangement is fulfilled. The BOCES currently has other leases for which the district’s administrative cost contributions helps pay. In addition, the BOCES’ intent to consolidate its operations would result in its discontinuation of these existing leases and in an overall savings during the 20-year lease period.

Not only have petitioners failed to prove improper conduct on the part of respondent, they have also failed to prove that the alleged irregularities, namely the language included in the district’s literature, actually affected the outcome of the election. A vote will not be set aside unless the petitioner demonstrates that there is a probability that the results of the vote would have been otherwise but for the irregularity alleged to have affected the voting (Appeal of Hable, 30 Ed Dept Rep 73). The record before me contains no affidavits or statements from individuals who voted for the referendum that they would have voted differently had they known that the BOCES' lease had not been executed. Nor does it contain any affidavits or statements from individuals who did not vote but who would have voted against the referendum had they been provided different information. Thus, while it may be supposed that some people might have voted differently, there is nothing in the record before me that demonstrates that the referendum would have been defeated had the information in the Classroom 2000–Reduced Proposal been stated differently. Nor do I find that any alleged irregularities are so pervasive in nature that they vitiate the electoral process. Under these circumstances, petitioners have not met their burden of proof upon which the relief sought may be granted. Consequently, the appeal must be dismissed.

I have considered petitioners’ remaining arguments and find them without merit.

THE APPEAL IS DISMISSED.

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