Decision No. 14,483

(November 9, 2000)

MILLS, Commissioner.--Petitioner challenges the referendum on a bond proposition conducted by the Board of Education of the Hewlett-Woodmere Union Free School District ("respondent") on June 20, 2000. The appeal must be dismissed.

On March 14, 2000, respondent conducted a referendum on three propositions for the financing of school construction projects totaling $85.1 million. The first proposition sought $72.1 million for construction of a new middle school, additions to the high school and communication and safety concerns. Proposition 2, for $7 million, was intended to finance additional renovations to the high school and the district's two elementary schools. Proposition 3, for $6 million, was intended to finance additional building projects at three sites. Three thousand, six hundred seventy-eight voters turned out and rejected all three propositions by margins of 829, 967 and 1066 votes, respectively.

Respondent subsequently submitted a new proposition to district voters at a referendum conducted on June 20, 2000. This proposition eliminated the proposed construction of the new middle school, reducing the total proposed expenditure to $22.7 million, almost $63 million less than the original proposal. The voter turnout was 1,844, and the proposition passed by 984 to 856 votes, a margin of 128 votes.

Petitioner alleges that respondent improperly used district resources and engaged in illegal partisan activities regarding the first bond vote on March 14. Specifically, petitioner alleges that respondent played partisan videotapes in the Franklin Early Learning Center, one of the sites effected by Proposition 3, and authorized staff and administrators to telephone parents of students in the district to influence their vote. Petitioner provides a letter dated March 7, 2000 from the Hewlett-Woodmere Faculty Association ("HWFA") and Hewlett-Woodmere Administrative and Supervisory Association ("HWASA") to staff members directing them to call parents about the bond vote from school, stating: "we have permission to do so." The letter also provided the following phone script:

Petitioner contends that respondent similarly influenced the outcome of the June 20 referendum as evidenced by the smaller voter turnout. She alleges that the low turnout may also have been the result of a misstated date in a local newspaper. Petitioner requests an order directing respondent to discontinue direct contact by district staff with residents and the use of district funds to influence votes, and voiding the June 20 vote. Petitioner's request for interim relief was denied on July 31, 2000.

Respondent asserts that the petition is untimely, fails to state a cause of action and fails to rebut the presumption of regularity in the conduct of elections. Respondent also denies that improper partisan activity occurred.

I must first address a procedural issue. In her reply, petitioner sets forth for the first time additional facts and allegations. 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 belatedly add assertions or exhibits that should have been in the petition (Appeal of McCart, et al., 39 Ed Dept Rep 534; Decision No. 14,302). Therefore, while I have reviewed petitioner's reply, I have not considered those portions that contain new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent asserts that the petition is untimely because the telephone calls advocated by the HWFA and HWASA letter and the alleged playing of the videotape relate solely to the March 14, 2000 vote, which occurred more than four months prior to the filing of the petition on July 18, 2000. An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Accordingly, to the extent petitioner alleges improper partisan activity related to the March 14 vote, those claims are clearly untimely and must be dismissed. However, petitioner also alleges that telephone calls were made to influence the June 20 vote as well. Therefore, I will not dismiss as untimely those claims relating to the June 20 vote.

However, the appeal must be dismissed on the merits. To overturn an election, petitioner must prove improper conduct on the part of respondent, such as a violation of the Education Law or the Commissioner's regulations. Petitioner must also establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Brown, 38 Ed Dept Rep 816, Decision No. 14,151; Appeal of Roberts, 33 id. 601, Decision No. 13,162), were so pervasive that they vitiated the electoral process (Appeal of Roberts, supra; Matter of Gilbert, 20 Ed Dept Rep 174, Decision No. 10,366), or demonstrated 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, Decision No. 11,356, aff'd sub nom Capobianco v. Ambach, 112 AD2d 640).

In an appeal before the Commissioner, petitioner bears the burden of establishing the facts upon which relief is sought (8 NYCRR "275.10; Appeal of Wolfe, 39 Ed Dept Rep 653, Decision No. 14,342). Respondent's president, Richard Braverman, avers that respondent has never requested that district employees communicate with voters to influence their votes, nor did respondent authorize the publication of the March 7 letter. In addition, the presidents of both the HWFA and HWASA aver that their constituents were not asked to make telephone calls relating to the June 20 referendum. Petitioner fails to provide proof to the contrary or any proof that respondent acted improperly with regard to the June vote. Accordingly, she has failed to meet her burden of proving that any irregularity occurred regarding the June 20 vote.

Furthermore, although the voter turnout was significantly lower for the June vote, petitioner has not shown that the low turnout was due to any improper influence or activity by respondent. Moreover, she presents no evidence that respondent disseminated any information, or that any action by respondent actually affected the outcome of the referendum that resulted in the approval of the proposed proposition by 128 votes. Petitioner provides no affidavits that anyone who voted for the referendum would have voted differently but for any alleged irregularity by respondent (Appeal of Krantz, 38 Ed Dept Rep 485, Decision No. 14,077). Mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of McBride, 39 Ed Dept Rep ___, Decision No. 14,354; Appeal of Ponella, 38 id. 610, Decision No. 14,103). Nor, as petitioner contends, can any irregularity be inferred from the fact that fewer voters turned out for the second referendum.

The record indicates that the telephone calls about which petitioner complains were limited to district residents whose children are enrolled in the public schools. The use of district telephones to call registered voters to convey neutral information such as the time, date, place and subject of the vote is not improper perse (Appeal of Gang, 32 Ed Dept Rep 337, Decision No. 12,847). However, even if the message is neutral, the Commissioner has consistently held that making telephone calls using a selective list of district voters who might be expected to support the adoption of a proposition, such as a list of district residents with children enrolled in the public schools, is improper because such activity affords the appearance of impermissible partisan activity (Appeal of Jordan, 39 Ed Dept Rep 551, Decision No. 14,308; Appeal of Schadtle, 38 id. 599, Decision No. 14,102; Appeal of Tortorello and Bartnik, 29 id. 306, Decision No. 12,303; Appeal of San Remo Civic Association, Inc., 28 id. 175, Decision No. 12,073). A board of education must avoid even the appearance of impermissible partisan activity with respect to the conduct of an election (see, e.g., Appeal of Schadtle, supra; Appeal of Tortorello and Bartnik, supra; Appeal of San Remo Civic Association, Inc., supra).

In addition, while a board of education may provide informational material to the voters concerning a proposed budget or proposition (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 (Appeal of Gravink, 37 Ed Dept Rep 393, Decision No. 13,888; Appeal of Rampello, 37 id. 153, Decision No. 13,830). In this case, although the telephone script in the March 7 letter does not specifically advocate a "yes" vote, the statement that "this is an important plan for our students and our schools" could easily be interpreted as a partisan message.

Accordingly, while the use of district telephones by district personnel does not invalidate the election results in this instance, respondent is admonished to refrain from using selective telephone lists, using statements that support a particular position, and in general engaging in activities that give an appearance of impermissible partisan activity or impropriety in future school district meetings and elections.

I have considered petitioner's remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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