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Decision No. 14,256

Appeal of ANNE MILLER from action of the Board of Education of the Greece Central School District and the Superintendent of Schools relating to a district meeting.

Decision No. 14,256

(November 24, 1999)

Wayne A. Vander Byl, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner appeals certain actions allegedly taken by the Board of Education of the Greece Central School District and the Superintendent of Schools with respect to a district meeting held on May 18, 1999. The appeal must be sustained in part.

Petitioner, a district resident, commenced this appeal by service of her petition on the district clerk on May 19, 1999. Petitioner alleges that respondents improperly used district funds, staff and resources to prepare bulk mailings, advertisements, signs and other materials to advocate in favor of passage of the proposed district budget and two propositions. Petitioner requests that respondents be instructed to cease such activity for all future district special meetings and budget and proposition votes.

Respondents deny that public funds were used to exhort a positive vote, deny that certain materials complained of by petitioner were produced by the district or involved district funds, and contend that those materials produced by the district were distributed as part of the board's effort to inform the public concerning the proposed budget, propositions and school board election and to encourage voters to vote. Respondents contend that the petition should be dismissed for failure to contain a clear and concise statement of petitioner's claim showing that she is entitled to relief.

Section 275.10 of the Regulations of the Commissioner of Education provides that a petition shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and a demand for the relief to which the petitioner deems herself entitled. Such statement shall be sufficiently clear to advise the respondent of the nature of the petitioner's claim and of the specific act or acts of which she complains. Petitioner's claim and demand for relief are sufficiently set forth in her petition and are summarized above. Where, as here, petitioner is not represented by counsel, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to respondent (Appeal of Smith, 37 Ed Dept Rep 583, Decision No. 13,934). Respondent does not plead any prejudice resulting from the petition nor do I find any such prejudice. Furthermore, respondents have adequately addressed petitioner's allegations in their answer. Accordingly, I decline to dismiss the petition as violative of "275.10 of the Commissioner's Regulations.

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, 67 NY2d 672, that school district funds may not be used to exhort the electorate to support a particular position. 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 (Appeal of Meyer, et al., 38 Ed Dept Rep 285, Decision No. 14,034; Appeal of Gravink, 37 id. 393, Decision No. 13,888; Appeal of Rampello, 37 id. 153; Decision No. 13,830).

Petitioner contends that the district used an allegedly partisan slogan - "Our Children, Our Schools, Our Future!" in its distribution of numerous materials with respect to the district meeting. Such statement does not expressly advocate a partisan position, and I do not find such statement implicitly partisan since, taken in the context of the materials in which it is presented, it may be interpreted merely as an expression of the importance of participation by eligible residents in the May 18, 1999 election, in an attempt to increase general voter turnout. The burden of proof in an appeal to the Commissioner rests with the petitioner (8NYCRR "275.10; Appeal of Gravink, supra). While it appears from the record that there is some dispute over the origination of the slogan, with respondent contending that such statement is part of its "Strategic Framework" district improvement plan which appears on all board publications, and petitioner contending that such statement was created by respondents to promote a partisan vote, I find petitioner's interpretation of the statement's language as partisan to be too speculative to sustain her claim.

Petitioner alleges the improper use of the phrase "Increase the percent of parents who vote 'Yes' on the budget", in a district brochure distributed to district residents two to four weeks before the district meeting. I find nothing objectionable with such language in the context in which it is presented. The brochure provides general information concerning the district's "Strategic Framework", which is described as "a long term planning tool, which serves as our blueprint for school and district success." Increasing the percent of parents who vote "Yes" on the budget is listed as a means for achieving success in the area of Home and Community Partnerships, which area is described as follows: "We must develop two-way, proactive communication in order to meet the educational needs of our students and community. We must develop partnerships with our stakeholder groups to support student success." The affidavit of respondent superintendent indicates that the listing of the goal of increasing the percent of parents who vote "yes" on the budget does not solicit a yes vote or entail soliciting such vote but instead is "an indicator of the degree of assent parents give to the Board's efforts to serve their children, which is monitored through exit surveys at the budget vote." Furthermore, I note that there are no references in the brochure to the May 18, 1999 election. Therefore, I do not find such phrase to constitute partisan advocacy with respect to the district election.

Petitioner further alleges that signs reading "OUR CHILDREN SCHOOLS FUTURE! Vote YES on May 18th" were hung in the window of an elementary school and the hallway of a high school. It appears from the record that the signs were produced and paid for exclusively by the Greece Teachers Association. The affidavit of the principal of the Brookside Elementary School states that she was not aware that the sign was posted in the window of the elementary school and that she did not consent to its posting. Respondents disclaim any knowledge of how the sign came to be posted. While there is nothing in the record which establishes that respondents caused or acquiesced in the posting of the sign in the elementary school, or that district funds were involved in such posting, I remind respondents that they are accountable for how district facilities and resources are being used (Appeal of Lawson, 38 Ed Dept Rep 713, Decision No. 14,124) and that they should take such measures as are necessary to ensure against the unauthorized posting of partisan election materials in the schools.

The posting of an identical sign in the high school presents a different issue. The affidavit of the principal of the Arcadia High School states that the sign was posted in the high school corridor prior to the May 18, 1999 election by the private effort of the students and that it is the policy and practice of the high school to allow students to post messages containing political speech in the corridors of the school. Respondents contend that the sign was posted by students in the exercise of their free expression rights under the First Amendment of the United State Constitution. In Tinker v. Des Moines Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.731 (1969), the Supreme Court stressed that students do not "shed their constitutional rights to freedom of speech or expression at the school house gate." Therefore, students may distribute literature on school premises which expresses their opinions on school budget votes and elections to the board of education, subject to reasonable regulation by the school district of the time, place, manner and duration of such activity and provided that the school district does not otherwise act through its personnel or funds to support such activity (Appeal of Rampello, supra). A school district may regulate the content of literature distributed on school grounds by students only to the extent necessary to avoid material and substantial interference with the requirements of order and discipline in the operation of the school (Eisner v. Stamford Board of Education, 314 F.Supp. 832 [1970], modified on other grounds, 440 F.2d 803 [2nd Cir. 1971]; Matter of Panarella et al. v. Birenbaum et al., 32 NY2d 108, 343 N.Y.S.2d 333, 296 N.E.2d 238 [1973]). The record indicates that the posting of the sign by high school students was permitted under school policy, and there is nothing in the record to establish that the students acted on behalf of or at the request or direction of the district, or that district funds were used in the production or posting of the sign.

I have examined the remaining election materials submitted as exhibits to the petition, and while I find that for the most part they contain only content-neutral information with respect to the date, time, place and purpose of the vote, certain materials prepared and distributed by the district impermissibly advocate a partisan position with respect to the issues presented at the May 18, 1999 district meeting.

The newspaper advertisement that appeared in the April 22, 1999 Greece Post includes the following statements of opinion which constitute impermissible advocacy: "New equipment is essential for our students to be successful in college and the workplace" and "[the proposed budget] Implements much needed school repairs and renovations . . .". Similarly, the "Highlights of the 1999-2000 Budget" and a twelve-page newspaper concerning "1999-2000 Proposed Budget Hightlights" includes the following statement, which taken as a whole, constitutes impermissible advocacy: "Greece Central's 1999-2000 Proposed Budget addresses the needs our community has identified, and that are outlined in the District's Strategic Framework planning document. It provides for improvements in our instructional programs, educational services, and buildings. It is a budget that was developed to respond to changing and enhanced student needs, and a community-wide desire for fiscal responsibility."

Furthermore, the following statement in the twelve- page newspaper, with respect to the purpose of Proposition 2, is an expression of opinion and advocates in favor of the proposition's adoption: "This proposition begins to address the critical school maintenance and renovations that will, if not addressed, become an overwhelming, long-term burden to the taxpayers . . ."

In addition, three two-sided postcard mailings sent to district residences constitute improper advocacy. Each of the three mailings is addressed to a different aspect of the proposed budget and uses one of the following phrases on the front of the card: "New Equipment and Renovations for Schools!"; "Full-Day Kindergarten & Smaller Class Sizes!"; and "New Computer Labs and Technology Updates!". The back of each card contains the statement: "The 1999-2000 Greece Central School District Budget was developed to address the needs our Greece community has identified. The proposed budget includes funding for these critical areas, while maintaining fiscal responsibility." This format, including the exclamatory phrases on the front of each card, provides more than objective information on the proposed budget and advocates in favor of the particular aspect of the proposed budget presented in the postcards. Finally, the description of Proposition 2 as providing "funds for much-needed school repairs and renovations [emphasis added]", in the postcard concerning "School Equipment, School Repairs, and Renovations" and the description of Y2K computer upgrades as "critical", in the postcard concerning "Computer Technology", are expressions of opinion and constitute advocacy.

Petitioner also contends that a similar postcard indicating "Tax Decrease for Most Greece Homeowners!" contains some misleading statements that could lead people to believe that if the two propositions presented at the May 18th district meeting did not pass, they would "miss out" on their School Tax Relief (STAR) exemptions. I do not find the express language of the postcard to be misleading and I find petitioner's contention entirely speculative. The postcard merely states in applicable part that "With the STAR exemption and the passage of the budget and two propositions, nearly all homeowners in Greece will see a decrease in their taxes" and further provides an example by means of a description of the affect on taxes for a home assessed at $95,000.

Lastly, petitioner objects to a postcard mailed by the district to residents which provided notice of a "parent information meeting" on May 10, 1999 at the Apollo Middle School concerning the "1999-2000 School Budget Presentation", "Specific Benefits for Apollo and Olympia Students". While the postcard states that the meeting is sponsored by the Apollo and Olympia PTSA (Parent Teacher Student Association), respondents state in their answer and the affidavit of the superintendent that the meeting was co-sponsored by the schools and their PTSAs.

The postcard cannot be deemed to advocate or provide partisan information on the proposed budget vote since it does not describe what those benefits are but merely states that a meeting will be held on such subject. Petitioner submits no evidence to indicate what occurred at the meeting. The affidavit of respondent superintendent states that he made "a general informational presentation regarding the proposed budget and answered questions from the public concerning the budget in general and its specific provisions for the school represented at the meeting". Therefore, on the record before me I find petitioner has failed to sustain her burden of proof that the postcard involved the improper use of district funds.

Nevertheless, in view of the postcard's language that 'specific benefits' to students would be discussed, I am concerned whether district funds were used for partisan advocacy at the informational meeting. To the extent objective information was presented on the proposed budget, any district expense with respect to the mailing of the postcard would be permissible. However, I advise respondents that the district's participation in a presentation of only the benefits of the proposed budget, or a presentation that primarily stressed such benefits, would constitute an improper use of district funds to advocate in favor of the budget.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondents 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.

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