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Decision No. 14,490

Appeals of the BOARD OF TRUSTEES OF THE GEORGE F. JOHNSON MEMORIAL LIBRARY from action of the Board of Education of the Union-Endicott Central School District regarding a referendum.

Decision No. 14,490

(November 30, 2000)

Sluzar & Becker, L.L.P., attorneys for petitioner, Joseph Sluzar, Esq., of counsel

Leasure, Gow, Munk & Rizzuto, attorneys for respondent, Thomas P. Rizzuto, Esq., of counsel

MILLS, Commissioner.--In two separate appeals, petitioner challenges action taken by the Board of Education of the Union-Endicott Central School District ("respondent") regarding two library funding propositions. Because the appeals involve common issues of fact, they are consolidated for decision. The appeals must be dismissed.

The George F. Johnson Memorial Library ("the library") is a village public library located within the Union-Endicott Central School District ("the district"). Apparently, the question of whether the district should fund the library has been controversial. At the district’s May 1999 annual election, voters approved a $385,000.00 annual library appropriation. However, the following year, the voters chose to reduce the library’s funding to $190,000.00. By letter dated March, 16, 2000, the library’s board of trustees ("petitioner") asked the district to place a proposition on the ballot at the May 2000 annual meeting proposing an increase in the library’s funding to $200,000.00. The proposition submitted by petitioner was:

SHALL THE FOLLOWING RESOLUTION BE ADOPTED TO WIT: RESOLVED THAT THE BOARD OF EDUCATION OF THE UNION-ENDICOTT CENTRAL SCHOOL DISTRICT BE AUTHORIZED TO INCREASE THE ANNUAL TAX LEVY IN THE AMOUNT OF TEN THOUSAND DOLLARS ($10,000.00) TO THE SUM OF TWO HUNDRED THOUSAND DOLLARS ($200,000.00) AND TO PAY OVER SUCH MONEYS TO THE BOARD OF TRUSTEES OF THE GEORGE F. JOHNSON MEMORIAL LIBRARY IN ACCORDANCE WITH "259 OF THE EDUCATION LAW?

In March 2000, a citizen’s group petitioned the district to place a proposition on the ballot proposing to eliminate the library funding entirely. The petition proposed the following language:

SHALL THE FOLLOWING RESOLUTION BE ADOPTED TO WIT: SHALL THE BOARD OF EDUCATION OF THE UNION-ENDICOTT CENTRAL SCHOOL DISTRICT BE AUTHORIZED TO REDUCE THE ANNUAL TAX LEVY FOR THE GEORGE F. JOHNSON MEMORIAL LIBRARY FROM ONE HUNDRED NINETY THOUSAND DOLLARS ($190,000.00) TO ZERO DOLLARS ($0.00) THEREBY ELIMINATING THE TAX IN ITS ENTIRETY.

At respondent’s March 20, 2000 meeting, respondent voted to place both propositions on the ballot, as well as a number of unrelated propositions. By letter dated March 21, 2000, petitioner’s attorney requested that respondent rescind its decision to place on the ballot the proposition proposing to eliminate the library’s funding on the grounds that it was confusing and inconsistent with petitioner’s proposition. Although respondent granted petitioner’s request to make a minor modification to the language of petitioner’s proposition, it refused to rescind its decision to present both propositions at the annual election.

Ultimately, respondent voted to present the two library propositions on the ballot as:

PROPOSITION NO. 4

(ELIMINATION OF GEORGE F. JOHNSON MEMORIAL LIBRARY TAX)

SHALL THE FOLLOWING RESOLUTION BE ADOPTED TO WIT: RESOLVED THAT THE ANNUAL TAX LEVY FOR THE GEORGE F. JOHNSON MEMORIAL LIBRARY IN THE SUM OF ONE HUNDRED AND NINETY THOUSAND DOLLARS (190,000.00) BE ELIMINATED?

PROPOSITION NO. 5

(GEORGE F.JOHNSON MEMORIAL LIBRARY INCREASE IN TAX LEVY)

IF THE VOTERS OF THE DISTRICT DO NOT ADOPT PROPOSITION NO. 4 ELIMINATING THE GEORGE F. JOHNSON MEMORIAL LIBRARY TAX, SHALL THE FOLLOWING RESOLUTION BE ADOPTED TO WIT: RESOLVED THAT THE BOARD OF EDUCATION OF THE UNION-ENDICOTT CENTRAL SCHOOL DISTRICT BE AUTHORIZED TO INCREASE THE ANNUAL LEVY OF TAXES BY TEN THOUSAND DOLLARS ($10,000.00) TO TWO HUNDRED THOUSAND DOLLARS ($200,000.00) AND TO PAY OVER SUCH MONEYS TO THE BOARD OF TRUSTEES OF THE GEORGE F. JOHNSON MEMORIAL LIBRARY IN ACCORDANCE WITH SECTION 259 OF THE EDUCATION LAW?

Petitioner commenced its first appeal on April 14, 2000, requesting that I issue a stay directing respondent to remove proposition number 4 from the ballot. Petitioner’s request for interim relief was denied on April 27, 2000.

The district’s annual election took place on May 16, 2000 from noon to 9:00 p.m. Before the polls opened, the district posted at each of its polling locations separate sheets of paper identifying each of the five propositions on the ballot. Although the document pertaining to proposition number 4 correctly referred to the proposition as relating to the elimination of the George F. Johnson Memorial Library tax, it contained the description of proposition number 3 pertaining to the establishment of a capital reserve fund. This error was discovered and brought to the district’s attention shortly after the polls opened at noon. According to respondent, the district removed the incorrect documents and posted an accurate description of the library proposition at all polling locations by 1:30 p.m.

In its first challenge, petitioner contends that the placement, order and language of the propositions violated Education Law ""259(1) and 2035 because the two propositions are allegedly inconsistent and confusing. For relief, they seek an order directing respondent to remove proposition number 4 from the ballot.

Respondent asserts that it was presented with two competing propositions, one seeking to increase library funding, and one seeking to eliminate it, and that it acted reasonably by presenting both propositions in a format that minimized confusion.

In its second appeal, petitioner contends that the erroneous posted information affected the outcome of the election and warrants invalidating the election results pertaining to the two library propositions. Petitioner’s request for interim relief was denied on June 27, 2000.

Respondent does not dispute that the error occurred, but explains that it took swift action to correct the problem once it was discovered, and asserts that petitioner has failed to establish that the error affected the outcome of the election.

Petitioner’s challenge to respondent’s decision to place both propositions on the ballot must be dismissed as moot. The Commissioner of Education only decides matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Morenus, 39 Ed Dept Rep 33, Decision No. 14,165; Appeal of June D., 38 id. 596, Decision No. 14,101). The only relief sought by petitioner is an order directing respondent to remove proposition number 4 from the ballot. Because the election has already taken place, the relief sought can no longer be granted, rendering the appeal moot.

Even if the appeal were not dismissed on procedural grounds, I would dismiss it on the merits. I find respondent acted properly by submitting both library propositions to the voters at the annual meeting. Pursuant to Education Law "259(1), respondent was obligated to place petitioner’s proposition on the ballot (Opinion of the State Comptroller 81-167; Appeal of Board of Trustees of the Earlville Free Library, 30 Ed Dept Rep 172, Decision No. 12,423). However, this obligation did not strip respondent of its authority to place on the ballot a contrary proposition, duly submitted, seeking the elimination of library funding. While respondent has a right to reject a proposition that is ambiguous or confusing (Appeal of Martin, 32 Ed Dept Rep 567, Decision No. 12,915), I find that the language of the proposition seeking elimination of library funding did not suffer from such infirmity. Rather, that proposition clearly proposed the elimination of funding to petitioner’s library. I find no error in respondent’s decision to alter the language of both propositions to minimize any confusion that might occur as a result of presenting both propositions at the election. The board has the authority to make relatively minor revisions to the language of a proposition to remove ambiguity in the language (Appeal of Cole, et al., 37 Ed Dept Rep 407, Decision No. 13,891; Appeal of Como, 30 id. 214, Decision No. 12,438). It would be logically inconsistent for district voters to approve both an increase and elimination of the library’s funding. Respondent’s modifications to the proposition language simply clarified that passage of proposition 5 would result in a $10,000.00 increase in library funding in the event that voter’s did not approve the elimination of the library’s funding. I find that respondent acted rationally by modifying both propositions, rather than depriving district voters of the opportunity to consider the proposition proposing to eliminate library funding.

I also find no basis to invalidate the election results because of the error in the posted information concerning proposition number 4. There is a presumption of regularity in the conduct of an election (Appeal of Leman, 38 Ed Dept Rep 683, Decision No. 14,117; Appeal of Robnett, et al., 37 id. 679, Decision No. 13,956). The Commissioner of Education will not set aside the results of a school district election in the absence of evidence 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 Leman, supra), were so pervasive that they vitiated the electoral process (Appeal of Leman, supra, Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162), or demonstrate 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’dsubnomCapobianco v. Ambach, 112 AD2d 640; Appeal of Leman, supra). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of the election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Leman, supra). Petitioner has the burden of establishing all the facts upon which it seeks relief (8 NYCRR "275.10; Appeal of Leman, supra).

Petitioner has failed to establish that the erroneous posted information affected the outcome of the election. The only proof offered by petitioner to support its contention is the difference in voting patterns between the electorate at large and those who voted by absentee ballot. According to petitioner, voters approved eliminating library funding by a vote of 1,395 to 1,130 and rejected increasing library funding by a vote of 1,346 to 992. Based on a hearsay statement attributed to the clerk of the district, petitioner claims that, of those voting by absentee ballot, "[f]orty-two voted in favor of eliminating the tax, and forty-four voted in favor of retaining [it]". Petitioner’s assertions fall far short of establishing that the error affected the outcome of the election. Petitioner has failed to submit an affidavit from a single voter establishing that he or she either read the notice or was mislead by it. Further, given the lack of correlation between the heading of the notice and the description contained below, it is likely that anyone who might have read it would have realized that it was erroneous. In addition, the incorrect notices were removed and correct information posted shortly after the polls opened. Moreover, the library propositions were properly described in the voting booth. In sum, on the record before me, I find no basis to conclude that the error affected the outcome of the election.

THE APPEALS ARE DISMISSED.

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