Decision No. 14,034

(November 23, 1998)

Gennaro L. Pasquale, Esq., attorney for petitioners

Edward T. Robinson III, Esq., attorney for respondents

MILLS, Commissioner.--Petitioners appeal the results of a special district meeting which approved a proposition authorizing construction and financing of a gymnasium and classroom additions at the Oyster Bay High School. The appeal must be sustained in part.

At a special district meeting held on October 22, 1997 in respondents' district, the district voters approved by a vote of 1,000 "yes" votes to 900 "no" votes a proposition authorizing the construction of a gymnasium, classroom additions, and other renovations, at the Oyster Bay High School and the financing of such construction in an amount not to exceed $9,760,000.

Petitioners, who describe themselves as residents, registered voters and/or owners of real property in respondents' district, contend that respondents illegally exhorted the electorate to vote in favor of the construction proposition, in violation of the holding in Phillips v. Maurer, 67 NY2d 672. Petitioners also allege that respondent Superintendent "recruited" the Oyster Bay-East Norwich Council of PTAs to act as the school administration's agent in exhorting a favorable vote on the proposition. Petitioners request that I vacate and invalidate the vote and order that a new vote be held. By letter dated December 9, 1997, my Office of Counsel denied petitioners' request that a stay be issued on the construction project pending a decision in this appeal.

Respondents deny petitioners' allegations and contend that the special district meeting was properly conducted in compliance with the law and that no improper expenditure of public funds was made in violation of Phillips v. Maurer, supra.

Although a board of education may provide informational material to the voters concerning a proposed budget or proposition (Education Law "1716), the Court of Appeals held in Phillips v. Maurer, supra, that school district funds may not be used to exhort the electorate to support a particular position. 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; Appeal of Saba, 36 Ed Dept Rep 233; Appeal of Allen, 32 id. 69).

Respondents' contention that the finding in Phillips v. Maurer must be limited to the facts of the case and that a violation occurs only if a board of education specifically "exhorts to vote yes" is without merit. While the Court of Appeals found that the board of education in that case specifically (and impermissibly) urged a "yes" vote, the Court also cited from Stern v. Kramarsky, supra, that "[t]o educate, to inform, to advocate or to promote voting on any issue may be undertaken, provided it is not to persuade nor to convey favoritism, partisanship, partiality, approval or disapproval by a State agency of any issue, worthy as it may be" [emphasis added]. Accordingly, statements that do not specifically urge a "yes" vote may nevertheless violate the holding in Phillips v. Maurer if such statements otherwise persuade or convey support for a particular position (see Appeal of Gravink, 37 Ed Dept 393; Appeal of Rampello, 37 id. 153).

I have examined the eight page bulletin entitled "Proposed Construction/Renovation Project at Oyster Bay High School" and the October 1997 "Special Edition" newsletter and find that they each impermissibly exhort the electorate to support the high school construction proposition. The bulletin includes several statements in support of the construction project that are expressions of opinion and go beyond what is "reasonably necessary" to educate the public (see Phillips v. Maurer, supra, p. 674), specifically: the phrases "A Rational, Long-Range Plan for the Optimum Use of Our Facilities", "A Sound Investment in Our Children's Future" and "The 1997 Proposed Bond . . . A Sound Investment in Our Children's Future"; and a statement from members of the Board of Education that they "have given our unanimous approval to this bond proposal for construction and renovation at the Oyster Bay High School. We are in complete agreement that the movement of grades 7 & 8 to Oyster Bay High School, coupled with the proposed high school construction and renovation, represents the best option for long-range planning in our school district". In addition, the phrasing of certain questions in the bulletin's question and answer format impermissibly advocates in favor of the construction proposition: "Why does this construction need to be done?", "Why should I support this bond proposal?", "How will the bond benefit a child in third grade?" and "How will a child now in kindergarten benefit from this proposal?". The Special Edition newsletter contains similar statements, including: a quote from the Board president that "Passing this bond proposition on October 22 will allow the school district to seize the opportunity to resolve our facilities needs and to move forward in the best interest of our children" and the statement "The value of your investment – your home- is tied directly to the investment that the community makes in its school district . . . The proposed bond issue will preserve and improve upon your investment". Furthermore, the quote from the Board - "Let us show everyone how important education is to all of us here in the Oyster Bay-East Norwich area. Let us send the message that our kids are our future, and that we know how to provide for that future", when taken in context with the foregoing statements, convey support for the construction proposition. Lastly, the newsletter includes, under the heading "OB-EN Residents Support Bond", quotes from three district residents in support of the construction proposition. There are no quotes from residents who oppose the construction proposition. Accordingly, these materials, which were generated by the district, were clearly partisan in nature.

Petitioners also contend that respondent superintendent used the Oyster Bay-East Norwich Council of PTAs ("the Council") to act as the school administration's "agent" in exhorting a "yes" vote on the construction proposition. However, there is nothing in the record that establishes that district funds were used by the Council to advocate in favor of the proposition, or that the Council was given access to district "channels of communication", such as the use of district personnel to distribute notices to students (Appeal of Saba, supra). While the record indicates that the return address on an envelope used by the Council to mail a notice to parents of students in the district urging a favorable vote on the proposition lists the Council's address at the district's administration building, there is nothing in the record to establish the impropriety of such address or the district's involvement in the distribution of the notice. The envelope indicates postage was paid under permit of the "PTA-PTSA Council". Furthermore, respondents deny that the actions taken by the Council were funded by the district or that respondent Board exercised any control over the Council's actions. Petitioners further allege that respondent Board gave the Council the confidential mailing addresses of all parents with children in the district and failed to charge the Council a fee for the addresses in violation of district rules. However, respondents allege that the mailing lists were made available to the Council without charge as they were to another organization which opposed the proposition.

Provided that no district funds were used, the Council, as an independent organization, may advocate its position on school district issues. The burden of proof in an appeal to the Commissioner is on the petitioner (8 NYCRR "275.10). Petitioners have failed to establish that district funds were involved in the mailing of the notices or other activities of the PTA Council in support of the construction proposition. Furthermore, with respect to an advertisement in favor of the construction proposition which was placed in a local newspaper by the Council, there is nothing in the record to establish that the advertisement was paid for in whole or part with district funds.

However, the use of school district funds to advocate for a particular position is not enough, in and of itself, to warrant my overturning an election. To invalidate the results of a school district election, petitioners must establish not only that an irregularity occurred, but also that the irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Santicola, 36 Ed Dept Rep 416), were so pervasive that they vitiated the electoral process (Appeal of Roberts, 33 id. 601; 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). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Goldman, 35 Ed Dept Rep 126; Appeal of Roberts, supra). The burden of proof in an appeal to the Commissioner rests with the petitioner (8 NYCRR "275.10; Appeal of Gravink, supra). Where a vote is 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 Crook, 35 Ed Dept Rep 546; Appeal of Mandell, 35 id. 538; Appeal of Bach, 32 id. 273; Appeal of Hable, 30 id. 73).

Petitioners submit no proof that anyone who voted for the construction proposition would have voted differently but for the improper solicitation of favorable votes by respondent board. Petitioners merely speculate in their petition that "[i]f only 5.1% of the 1,000 residents who voted for the proposition would have voted against it, but for the improper solicitation of [the] Board, the vote would have been 951 to 949 against the bond issue and it would have been defeated." The referendum passed by a margin of 100 votes. Based upon the record before me, I find no basis to overturn the district vote on the construction proposition. Nevertheless, I admonish respondents to abide by the holding in Phillips v. Maurer and refrain from using District funds to advocate a partisan position with respect to matters that are the subject of a school district vote.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondents refrain from using District funds to advocate a partisan position with respect to matters that are the subject of a school district vote.

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