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Decision No. 14,077

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Appeal of JEREMY J. KRANTZ, individually and on behalf of AMANDA MERYL KRANTZ, EMILY REBECCA KRANTZ and NOAH CHARLES KRANTZ, from action of the Board of Education of the City School District of the City of Peekskill regarding the conduct of a bond referendum.

Decision No. 14,077

(February 18, 1999)

Keane & Beane, P.C., attorneys for respondent, Frances M. Pantaleo, Esq., of counsel

 

MILLS, Commissioner.--Petitioner challenges certain conduct prior to, during and following a bond referendum held on October 6, 1998 by the Board of Education of the City School District of the City of Peekskill ("respondent"). The voters approved the bond referendum by a vote of 582 to 568. The appeal must be dismissed.

Petitioner alleges that prior to the October 6 vote, respondent twice improperly used school property and tax dollars to advocate the passage of the bond referendum. The first time was on September 18, 1998, at a "welcome back" tea sponsored by the Hillcrest Home School Association (HSA). Petitioner states that at the tea, Sean McGuinness, a member of respondent board and husband of the HSA president, spoke to those attending (20 or 35, according to different affidavits), explained the referendum and urged a yes vote. The second time was on September 24, 1998. Mr. McGuinness, Mrs. McGuinness and John Hallinan, respondent’s president, addressed approximately 200 people who attended a meeting prior to an Open House at Hillcrest. Petitioner asserts that Mr. Hallinan urged those present to vote in favor of the bond because the district needed the funds to construct additional classrooms. Petitioner also alleges that flyers urging passage of the bond vote, which were placed at the front door of the gymnasium, were made, copied and prepared on school property at taxpayer expense. Petitioner contends that the use of school property, statements by Mr. and Mrs. McGuinness and Mr. Hallinan, and distribution of flyers constituted electioneering that prejudiced the voters.

Petitioner further alleges that improper electioneering occurred at the Park Street School where he cast his vote on October 6. Due to the unavailability of voting machines, paper ballots were utilized. Petitioner claims respondent provided insufficient direction on how to vote by paper ballot. Furthermore, he contends that one of the three election inspectors at Park Street (identified by respondent as Clara Bynum) improperly engaged him in conversation regarding the bond referendum and urged him to support it. He asserts that other individuals, specifically Darryl Sheridan, overheard Ms. Bynum urge petitioner to vote for the referendum. Petitioner also asserts that Ms. Bynum reviewed his ballot, and may not have deposited it in the ballot box. He postulates that other "no" ballots may have been improperly excluded from the ballot boxes and that other individuals may have been influenced by Ms. Bynum’s comments. Petitioner also contends that the number of registered voters does not match the number of votes cast, the paper ballots could have been tampered with, and a sign urging passage of the referendum was improperly displayed in front of Hillcrest School.

Petitioner requests that I invalidate the bond vote; permanently enjoin implementation of the vote; and issue subpoenas to Sean McGuinness, John Hallinan, and the poll workers who oversaw the October 6 vote. Petitioner requests an opportunity to inspect the voting records and ballots and depose the above-named individuals and poll workers.

Respondent denies petitioner’s claims, asserts that the petition fails to state a claim, and contends that Amanda, Emily and Noah Krantz lack standing to maintain this appeal.

Initially, I must address the issue of standing. To maintain an appeal pursuant to Education Law '310, a party must be aggrieved in the sense of having suffered personal damage or impairment of his or her civil, personal or property rights (Appeal of Wenger, 37 Ed Dept Rep 5; Appeal of Szymkowiak, 36 id. 204; Appeal of Goloski, 34 id. 565). Although petitioner’s minor children, who are ineligible to vote, have not been aggrieved, petitioner, as a district resident, has standing to maintain this appeal (Appeal of Gravink, 37 Ed Dept Rep 393). Accordingly, I will not dismiss the appeal for lack of standing.

Petitioner raises several new issues in his reply. In addition, he submits new exhibits and affidavits from four individuals and asks that I accept them under 8 NYCRR "276.5. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR "" 275.3 and 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 (Appeal of Chechek, 37 Ed Dept Rep 624; Appeal of Cole, et al., 37 id. 407; Appeal of Rampello, 37 id. 153). There is nothing in the affidavits that was unavailable at the time the petition was served, since the affidavits concern events that occurred on October 6. Nor does petitioner claim that he was precluded from obtaining this information in time to include it in the petition. Therefore, while I have reviewed petitioner’s submissions, I have not considered those portions of the reply containing new allegations or exhibits which are not responsive to new material or affirmative defenses set forth in the answer.

A board of education may provide informational material to the voters concerning a proposed budget or proposition (Education Law ""1716 and 2601-a). However, school district funds may not be used to exhort the electorate to support a particular position (Phillips v. Maurer, 67 NY2d 672). Even indirect support, such as a school board giving a PTA access to its established channels 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 Meyer, et al., 38 Ed Dept Rep 285; Appeal of Saba, 36 id. 233; Appeal of Allen, 32 id. 69). Moreover, it is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election (Appeal of Dinan, 36 Ed Dept Rep 370; Appeal of Carroll, 33 id. 219; Appeal of Weaver, 28 id. 183). However, individual board members and employees are entitled to express their views about issues concerning the district and engage in partisan activity, provided school district funds or resources are not used (Appeal of Dinan, supra;Appeal of Carroll, supra; Appeal of Weaver, supra).

According to the affidavit of Christina McGuinness, president of the Hillcrest HSA, the HSA is a membership organization separate from the school administration and receives no operating funds from the district. Mrs. McGuinness, the Hillcrest principal, and respondent all assert that the HSA, not respondent, sponsored the September 18 tea and the September 24 membership meeting, which was held prior to the school Open House. Both Messrs. McGuinness and Hallinan state in affidavits that when they urged support for the bond referendum at the tea and membership meeting, they were expressing their own personal opinions and did not purport to speak for the board. Furthermore, Mr. and Mrs. McGuinness attest that Mrs. McGuinness prepared the flyers at their home with their daughter and another friend, copied them at a separate copy facility and did not use district paper or funds. Although petitioner asserts that the flyers were left on a chair at the front door of the gymnasium, Mrs. McGuinness states that a member of the HSA distributed the flyers, and there is no evidence that parents had unrestricted access to the flyers during the Open House which followed the HSA meeting.

The burden of proof in an appeal to the Commissioner is with the petitioner (8 NYCRR "275.10). In the instant matter, there is no evidence that the board itself engaged in partisan activities. Nor is there any evidence that district funds were used in preparing or distributing the flyers, or that respondent was aware of, sanctioned or otherwise provided support to this activity at the time it occurred (Appeal of Rampello, supra; Appeal of Friedman, 32 Ed Dept Rep 601). Furthermore, there is no evidence that the HSA improperly sent home its flyer with students (Appeal of Allen (32 id. 69) or that the HSA was given access to district channels of communication, such as the use of district personnel, to distribute the flyer to students (Appeal of Meyer, et al., supra). Provided that no district funds were used, the HSA, as an independent organization, may advocate its position on school district issues. The fact that the HSA held its meeting at the school and distributed flyers there is not perse evidence sufficient to demonstrate that respondent engaged in partisan activities. Thus, there is no basis to conclude that the activities on September 18 or September 24 were improper (Appeal of Carroll, supra). However, I note that boards of education are ultimately responsible for the use of school facilities and resources. Boards of education must, therefore, exercise great care to avoid lending even indirect support to partisan activities through the use of such facilities and resources. Accordingly, while it appears that the HSA meeting was separate and distinct from the Open House, I urge respondent to prevent the distribution of partisan information at such events conducted on school premises to avoid any confusion or appearance of impropriety.

Moreover, even if respondent had engaged in improper conduct, petitioner has provided no proof that its actions affected the outcome of the election. To invalidate the results of a school district election, petitioners must establish not only that irregularities 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). Also, it is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Krantz, 37 Ed Dept Rep 257; Appeal of Kushner, 36 id. 261; Appeal of Young, 26 id. 272). Moreover, 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 Meyer, et al., 38 Ed Dept Rep 285; Appeal of Crook, 35 id. 546; Appeal of Mandell, 35 id. 538; Appeal of Bach, 32 id. 273; Appeal of Hable, 30 id. 73). Petitioner has failed to meet that burden.

First, petitioner submits no proof regarding any discrepancy between the number of votes cast versus the number of voters registered. According to the affidavit of Anne Desmond, the district clerk, and respondent’s tally sheets, the votes cast correctly correspond to the number of voters registered. At the end of the voting on October 6, the bond referendum passed by 579 to 564, a difference of 15 votes. In addition, voters whose names could not be found on the register of voters supplied by the Westchester County Board of Elections were permitted to complete an unnumbered paper ballot and an affidavit. The ballot and affidavit were kept separate from the ballot box. Eight such ballots were used in the election, of which seven were cast by valid voters. Of those seven, three were yes votes, and four were no votes, bringing the final tally to 582 to 568, a difference of 14. Most significantly, petitioner provides no proof that any individual, much less 14 or more individuals, would have voted differently but for any alleged improprieties.

Furthermore, respondent’s affidavits contradict petitioner’s claims concerning the alleged improprieties. Ms. Desmond attests that the Westchester County Board of Elections certified all the election inspectors used by the district. Because the bond vote so closely followed the September primary elections, the district was not permitted to use the voting machines that had been used during the primary and had to use paper ballots. Although certified election inspectors are trained in the mechanics of the election process, including the proper conduct of elections which use paper ballots, Ms. Desmond prepared and mailed written instructions regarding the procedures to be followed and held a special training workshop the day before the election because the district had not held an election with paper ballots for many years. Two of the three inspectors at the Park Street voting venue, including Ms. Bynum, attended the training workshop. According to the instructions, the inspector was to hand each voter a folded ballot, the voter was instructed to return the ballot folded, at which time the inspector was to compare the number on the stub to the number assigned to the voter. If the numbers matched, the inspector tore off the stub, placed the stub in an envelope and the ballot in the box. Ms. Desmond attests that when she visited each of the six polling sites, she observed partitioned voting booths with an enclosed desk for privacy. She also observed the election inspectors following proper procedures, and did not witness any inspector discuss the merits of the bond referendum or tell anyone how to vote.

The remaining claim concerns alleged electioneering by Ms. Bynum at the Park Street voting site during the election. Ms. Bynum attests that she followed the procedures described above and denies that she looked at completed ballots, failed to deposit completed ballots in the box, or told the gentleman she believes to be petitioner how to vote. An affidavit by Jeanette Henderlong, another inspector at Park Street, provides similar statements.

In his reply, petitioner claims he is not the "gentleman" to whom Ms. Bynum refers, but rather that individual is Richard Seiden, who, along with his wife, submit affidavits attesting that they observed Ms. Bynum make inappropriate comments and urge support of the referendum. Petitioner also submits in the reply an affidavit from Anthony Tanner to the same effect. In addition, petitioner states in the reply that the third inspector at Park Street, Dorothy Sekel, was too intimidated to sign an affidavit in support of the petition. However, he claims she told him that she observed Ms. Bynum tell people to support the referendum, and that Ms. Bynum refused to stop when requested to do so by Ms. Sekel and Ms. Henderlong. As discussed above, I decline to consider those portions of the reply containing new allegations that are not responsive to new material or affirmative defenses. Even if they were to be considered, Ms. Sekel’s alleged hearsay statements, in the absence of an affidavit, are unsubstantiated. Moreover, the affidavits of Ms. Desmond, Ms. Bynum and Ms. Henderlong contradict these statements and the affidavits of petitioner, the Seidens, Mr. Tanner, and Mr. Sheridan. To the extent that the affidavits contradict each other, they are in equipoise. Nonetheless, even if petitioner’s affidavits were taken at face value, there is no allegation or proof that Ms. Bynum’s alleged impropriety affected their votes or the outcome of the election. Accordingly, petitioner has failed to meet his burden of proof.

I have considered petitioner's other claims and find them without merit. Accordingly, petitioner has failed to meet his burden of proof that the alleged irregularities occurred, or, if they occurred, that they affected the outcome of the election. Finally, regarding petitioner’s request that I issue subpoenas and depose witnesses, I note that an appeal to the Commissioner under Education Law "310 is appellate in nature and does not provide for discovery (Appeal of Schonfeld, 38 Ed Dept Rep 306).

THE APPEAL IS DISMISSED.

END OF FILE

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