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Decision No. 14,480

Appeal of ANDREW P. DORO from action of the Board of Education of the Millbrook Central School District regarding a budget vote.

Decision No. 14,480

(November 7, 2000)

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges certain actions surrounding a budget re-vote conducted by the Board of Education of the Millbrook Central School District ("respondent") on June 15, 2000. The appeal must be sustained in part.

Petitioner contends that the June 12, 2000 edition of a student publication, the "Millbrook Blaze," improperly printed an editorial by a student that exhorted district voters to support the proposed budget at the June 15 election. Petitioner also alleges that, during school hours, some teachers assisted in the distribution of flyers, produced by the Millbrook Teachers' Association, to district residents that urged support for the proposed budget. Petitioner contends that both activities improperly used school district resources to advance a partisan position. He requests that I order respondent to cease such practices, and to adopt or follow procedures consistent with the Education Law.

Respondent asserts that the student publication, although minimally funded by the school district, was primarily supported by other, nontaxpayer funds. In any event, respondent contends that the students' comments in the publication were their own opinions and were not solicited by school staff or administrators, and thus did not violate the prohibition against partisan activity by a school district. Respondent further states that the teachers acted on their own time after school hours and on behalf of a private organization when they assisted in the distribution of flyers produced by the Millbrook Teachers' Association, although such activities were carried out on school property. Respondent also asserts that petitioner seeks only declaratory relief or an advisory opinion, so the petition should be dismissed.

I will first address the procedural objection. I have previously held that, when a petitioner alleges that respondent has violated the law by expending funds to advocate a partisan position regarding an election but does not seek to have the results of the vote set aside, he is, in effect, merely seeking an advisory opinion concerning the propriety of respondent's actions. Accordingly, I dismissed such appeals on the grounds that the Commissioner does not issue advisory opinions in appeals brought pursuant to Education Law "310 (Appeal of Instone-Noonan, 39 Ed Dept Rep 413, Decision No. 14,275; Appeal of Lombardo, 39 id. 26, Decision No. 14,162). However, I have also more recently recognized that, where petitioner additionally requests that I order respondent to cease such partisan activity and improper use of public funds in all future elections, the petition goes beyond a mere request for an advisory opinion concerning the propriety of respondent's actions and raises a justiciable claim (Appeal of Goldin, 39 Ed Dept Rep 323, Decision No. 14,250). In the instant appeal, petitioner similarly requests that I order respondent to cease all improper partisan activities, so I decline to dismiss the appeal on the grounds that it requests an advisory opinion.

A board of education may provide informational material to the voters concerning a proposed budget (Education Law "1716), but school district funds may not be used to exhort the electorate to support a particular position (Phillips v. Maurer, 67 NY2d 672 [1986]). As to opinions expressed in the student publication that advocated approval of the budget, respondent correctly notes that the Commissioner has previously held that the student editors of a student newspaper funded by a school district may editorialize in favor of specific school board candidates or a proposed school district budget, provided that the school district has not acted to influence the content of the editorials (Appeal of Rampello, 37 Ed Dept Rep 153, Decision No. 13,830; Appeal of Beil and Scariati, 26 id. 109, Decision No. 11,694). Similarly, students may distribute literature on school premises which expresses their opinions on school budget votes and elections, 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 Miller, 39 Ed Dept Rep 348, Decision No. 14,256; Appeal of Rampello, supra). The editorial comments in the student publication thus do not constitute illegal electioneering by respondent.

However, school facilities may not be used by representatives of a private organization to prepare flyers for mailing to district residents, advocating an affirmative vote on the budget election. The use of district resources to distribute materials designed to solicit favorable votes violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Maurer, supra). 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 has been deemed improper (Appeal of McBride, et al., 39 Ed Dept Rep ___, Decision No. 14,354; Appeal of Saba, 36 id. 233, Decision No. 13,710; Appeal of Allen, 32 id. 69, Decision No. 12,761). Permitting teachers to use school facilities to undertake private activities to advocate a particular position on a budget re-vote is similarly improper. In addition to lending indirect support to the private organization's efforts to influence the vote, permitting such use of school facilities by school staff also lends an appearance of prohibited partisan activity by the school district, which school districts should avoid (Appeal of McBride, et al., supra; Appeal of Lombardo, supra).

I urge respondent to review its policies to ensure strict compliance with these principles in the future and to avoid even the appearance of impropriety.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent refrain from permitting school staff to use the school facilities for private partisan activities to advocate a particular position on a district election.

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