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Decision No. 14,162

Appeal of LARRY LOMBARDO from action of the Board of Education of the Lynbrook Union Free School District regarding a budget vote.

Decision No. 14,162

(July 15, 1999)

Ehrlich, Frazer & Feldman, attorneys for respondent, Jacob S. Feldman and Christine M. La Place, Esqs., of counsel

MILLS, Commissioner.--Petitioner, a resident and taxpayer of the Lynbrook Union Free School District, challenges respondent's role in the dissemination of information in advance of the district's annual budget vote. The appeal must be dismissed.

On or about May 4, 1998, the president of the West End Parent Teacher Association ("PTA"), issued a newsletter on the back of the monthly school calendar. The newsletter was paid for by the PTA. The newsletter included the statement "Remember to get out and vote for the budget on May 19, 1998". This newsletter was disseminated to every student at the district's West End Elementary School. Petitioner submitted subsequent papers relating to signs posted by respondent and a newsletter asking voters to support the schools, which I have accepted for the record.

Petitioner contends that the PTA document used taxpayer money to exhort the electorate to vote yes on the budget and requests that I order respondent to apologize for such action.

Respondent denies petitioner’s allegation and contends that it properly conducted the budget vote and that no improper expenditure of public funds was made in violation of Phillips v. Maurer, 67 NY2d 672. Petitioner asserts that the newsletter contained only factual information about the budget vote. Further, respondent maintains that petitioner has failed to meet his burden of establishing facts to support his claim.

As a threshold matter, petitioner does not contest the conduct or result of the vote itself. Petitioner seeks to have me order respondent to apologize for allowing the PTA to distribute the newsletter at issue. In effect, petitioner is merely seeking an advisory opinion concerning the propriety of respondent’s actions. The Commissioner does not issue advisory opinions in appeals brought pursuant to Education Law "310 (Appeal of Lambert, 37 Ed Dept Rep 599, Decision No. 13,937). Therefore, this appeal must be dismissed.

Although I am dismissing this appeal on procedural grounds, the facts of this case warrant a recitation of the law governing budget votes. A board of education may provide informational material to the voters concerning a proposed budget (Education Law "1716). However, school district funds may not be used to exhort the electorate to support a particular position. Phillips v. Maurer, supra. Statements that do not specifically urge a "yes" vote may nevertheless violate the holding in Phillips if such statements otherwise seek to persuade or convey support for a particular position (See Appeal of Meyer, 38 Ed Dept Rep 285, Decision No. 14,034; Appeal of Lambert, supra; Appeal of Gravink, 37 Ed Dept Rep 393, Decision No. 13,888; Appeal of Rampello, 37 id. 153, Decision No. 13,830). Moreover, indirect support including 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 (Appeal of Meyer, supra; Stern v. Kramarsky, 84 Misc.2d 447; Appeal of Saba, 36 Ed Dept Rep 233, Decision No. 13,710; Appeal of Allen, 32 id. 69, Decision No. 12,761). School boards are ultimately responsible for the proper conduct of school district elections and must ensure that they do not lend even indirect support to partisan activities through their communication channels (Appeal of Lambert, supra).

Respondent authorized the use of school district communication channels for the distribution of a PTA newsletter, which contains the words "vote for the budget". I admonish respondent to review its policies to ensure stricter compliance with the principles of Phillips v. Maurer, and in the future, endeavor to avoid even the appearance of impropriety.

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE