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Decision No. 14,250

Appeal of DIONE GOLDIN, from action of Wayne F. Gersen, Superintendent of Schools of the Wappingers Central School District, regarding a school district election.

Decision No. 14,250

(November 20, 1999)

Shaw & Perelson, LLP, attorneys for respondent, Michael K. Lambert, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges certain actions by respondent Superintendent of Schools with respect to a school district election held on May 18, 1999. The appeal must be sustained in part.

Petitioner, a resident of the Wappingers Central School District, alleges that respondent Superintendent of Schools, Wayne F. Gersen, scheduled several "coffees" from April 14, 1999 through May 14, 1999 so that respondent and other district administrators could speak to select groups of people who were likely to vote in favor of the budget. The alleged goal was to solicit their votes and encourage them to approve the district's budget for the 1999-2000 school year. Petitioner alleges that most of the meetings were held in private homes "by invitation only" and were hosted by persons with specific and direct connections to the schools in the district, such as PTA officers, parents and teachers. Petitioner further alleges that district funds were expended in connection with the coffees and that respondent and other district administrators provided partisan information to the attendees. Petitioner contends that respondent's actions violate district policies, the Education Law and the State Constitution.

Petitioner requests a determination that respondent has acted improperly and illegally in attempting to influence the May 18, 1999 budget vote. Petitioner also requests that respondent be ordered to discontinue holding the private "coffees" and to refrain from using district funds and facilities to promote partisan activities. I note that petitioner commenced this appeal before the election and does not seek to set aside the election results. By letter dated May 17, 1999, I denied petitioner's request for a stay of the coffees pending a final determination in this appeal.

Respondent denies petitioner's allegations and states that he and other district administrators attended certain coffees during the period alleged to provide voters with nonpartisan information concerning the May 18, 1999 district election. Respondent denies that he scheduled the coffees and states that they were variously hosted by PTA officers, parents, teachers, Rotary Clubs, senior citizen groups and a church. In addition, respondent contends that the appeal should be dismissed as untimely, moot, for failure to state a claim, and for improperly seeking purely declaratory relief.

At the outset, I note that respondent objects to certain material in petitioner's reply. 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 Krantz, 38 Ed Dept Rep 485, Decision No. 14,077). 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.

Although not raised by respondent, I also note that petitioner's memorandum of law raises issues and allegations that were not part of the pleadings. A memorandum of law may not be used to belatedly add new assertions which are not part of the pleadings (Appeal of Coombs, 34 Ed Dept Rep 253, Decision No. 13,301). Therefore, I have not considered those portions of petitioner’s memorandum of law that raise new issues or allegations.

Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be instituted within 30 days from the making of the decision or the performance of the act complained of. Petitioner complains of respondent's alleged actions with respect to an ongoing series of "coffees" held from April 14 through May 14, 1999. Petitioner commenced this appeal on May 7, 1999. Therefore, upon the record before me, I find that the appeal was timely commenced.

Respondent contends that the appeal should be dismissed as moot. The Commissioner determines only matters in actual controversy and will not render a determination on an issue which subsequent events have laid to rest (Appeal of June D., 38 Ed Dept Rep 596, Decision No. 14,101; Appeal of Schuler, 37 id. 512, Decision No. 13,915; Appeal of Edward G., 36 id. 9, Decision No. 13,636). However, an appeal will be entertained where the controversy is of a character which is likely to recur not only with respect to the same parties but with respect to others as well (Appeal of Feiss, 37 Ed Dept Rep 339, Decision No. 13,874). While petitioner seeks to prevent respondent from holding private coffees to influence the election and those coffees have all been held, petitioner alleges that similar coffees were held last year and respondent indicates in its answer that for approximately two years it has been utilizing the coffees to speak to community groups to inform them about upcoming elections. Because it appears from the record that the challenged conduct is likely to continue with respect to future elections, I decline to dismiss the appeal as moot.

Respondent also contends that the appeal should be dismissed for improperly seeking declaratory relief. The Commissioner of Education will not render advisory opinions or decide issues which have not yet become justiciable (Appeal of Jacobson, 37 Ed Dept Rep 75, Decision No.13,808; Appeal of Sullivan, 23 id. 264, Decision No. 11,212; Appeal of Rhodes, 21 Ed Dept Rep 632, Decision No. 10,815). However, petitioner alleges that respondent improperly expended district funds to advocate a partisan position with respect to the district election held on May 18, 1999, in violation of district policies, the Education Law and the State Constitution. Whether or not respondent engaged in such conduct is a justiciable issue, and therefore I decline to dismiss the appeal for improperly seeking declaratory relief.

Although petitioner alleges that respondent has scheduled the coffees, respondent denies this allegation and there is nothing in the record to establish that respondent or the district was responsible for the origination of the coffees. Rather, it appears from the record that the events were initiated and held by private individuals and groups, such as parents, teachers, PTAs, Rotary Clubs, senior citizen groups and a church. It also appears that at least some of these events were held in private homes by invitation only. Respondent denies petitioner's allegation that the coffees were arranged so that he and other district administrators could speak to select groups of people who are likely to vote in favor of the proposed budget to solicit their vote. Respondent contends that the purpose of the events was to provide objective, nonpartisan information to district voters as to what they would be voting on at the May 18, 1999 election.

The encouragement of the electorate to exercise the franchise is not improper perse, but a district must not engage in partisan activity during the conduct of an election (Appeal of the San Remo Civic Association, Inc., 28 Ed Dept Rep 175, Decision No. 12,073). In addition, in providing information to the voters concerning a district election, a school district should avoid the appearance of partisan activity (Appeal of Sowinski, 34 Ed Dept Rep 184, Decision No. 13,276; Appeal of Bayly and Rogers, 30 id. 442, Decision No. 12,527). The burden of proof in an appeal to the Commissioner rests with the petitioner (Appeal of Gravink, 37 Ed Dept Rep 393, Decision No. 13,888). The record before me does not establish that respondent intentionally sought to increase the turnout of selected groups as more likely to support the proposed budget. Instead, it appears that the coffees were part of respondent's efforts to provide information concerning the election to district voters and encourage them to vote. Nevertheless, I find that the attendance of respondent and other district administrators, in their official capacities and during their hours of employment with the district, at privately-sponsored coffees that are closed to the general public for the purpose of providing information on a district election, presents at least the appearance of partisan activity and should be refrained from.

Petitioner also alleges that respondent attended the coffees for the purpose of providing partisan information concerning the election. Although a board of education may provide information to the voters concerning a district election (Education Law "1716), school district funds may not be used to exhort the electorate to support a particular position (Phillips v. Maurer, 67 NY2d 672). Statements that do not specifically urge a "yes" vote may nevertheless violate the holding in Phillips v. Maurer if such statements otherwise seek to persuade or convey support for a particular position (see Appeal of Gravink, supra; Appeal of Rampello, 37 id. 153, Decision No. 13,830). I have examined copies of the handouts prepared by the district and provided to individuals attending the coffees. For the most part, the information in the handouts provides neutral information on the proposed budget and propositions presented at the May 18, 1999 election. However, the characterization of certain projects as "needed", in the description of proposition #2, is an opinion rather than a fact and constitutes impermissible advocacy. Furthermore, the following passage in the description of the proposed operating budget, taken as a whole, tends to urge a particular position on the voters and constitutes improper advocacy: "WCSD needs to continue improving instructionally. We need to continue our efforts to prepare ALL students to meet the Regents standards and continue our efforts to upgrade our instructional technology. These continued improvements will require a modest increase in the budget."

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent, in his official capacity as superintendent of schools and during the hours of his employment with the school district, refrain from attending privately-sponsored events which are closed to the general public, for purposes of providing information on school district elections and votes, in accordance with the terms of this decision, and it is further

ORDERED that respondent refrain from using district resources to advocate a partisan position with respect to matters that are the subject of a school district vote, in

accordance with the terms of this decision.

END OF FILE