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Decision No. 14,527

Appeal of JONATHAN KARPOFF, WILLIAM GRIFF and ELLEN S. DAVIS, from action of the Board of Education of the Croton-Harmon Union Free School District and Superintendent Marjorie Castro regarding a bond referendum.

Decision No. 14,527

(December 22, 2000)

Plunkett & Jaffe, P.C., attorneys for respondents, Phyllis S. Jaffe, Esq., of counsel

MILLS, Commissioner.--Petitioners, who are all district residents, appeal various actions of the Board of Education of the Croton-Harmon Union Free School District ("respondent board") and Superintendent Marjorie Castro relating to a referendum conducted on June 6, 2000. The appeal must be sustained in part.

On June 6, 2000, respondent board presented district residents with a proposition to borrow up to $34.8 million for construction, renovation and related costs at the district’s three schools. The proposed capital project passed by nine votes, with 1,226 residents voting in favor and 1,217 voting against it.

Petitioners allege that respondents improperly expended public funds to produce and distribute literature that advocated approval of the capital project and that district personnel took other actions to promote its passage. Petitioners assert that one of the documents overstated by $2 million the amount of State aid the district would receive if the capital project passed. They contend that respondents were so extensively involved with an independent group that produced a video advocating approval of the capital project that the video should be deemed respondents’ product. Petitioners further argue that individual board members improperly lent their names to a newspaper advertisement urging approval of the capital project. Finally, petitioners allege that Ms. Castro and "possibly" other district personnel attended private meetings during school district business hours to promote passage of the proposition and that this constitutes an improper use of district funds.

Petitioners claim that without the alleged improper use of public funds for advocacy, the capital project would have been defeated. They argue that respondents’ alleged misconduct and disregard for the law vitiated the electoral process and ask me to nullify the election results, order a new vote and direct respondents to refrain from improper advocacy with respect to a new vote. In the alternative, they seek an order directing respondents to refrain from improper conduct in regard to any future school district referenda.

Respondents claim that all materials prepared and distributed by the district were proper, that they did not engage in any improper partisan activity and that petitioners have failed to show that any of respondents’ actions actually affected the outcome of the vote. Respondents assert that the district’s written materials contained only factual statements intended to inform district residents about the proposed capital project and that none improperly advocated a "yes" vote. They concede that one document contained a mistaken estimate of the amount of State aid the district would receive if the project were approved. They further acknowledge that a letter signed by the Athletic Director on department letterhead improperly asked recipients to vote for the proposed borrowing. However, they assert that this letter was prepared without their knowledge or approval, that the Athletic Director was reprimanded for sending it and that the Booster Club assumed all the expense of preparing and distributing the letter. They deny that students were required to prepare copies of the letter for mailing during class time.

Respondents deny funding or participating in the preparation of the video advocating for the proposed capital project, apart from permitting the producers to film on school property and monitoring the filming. Ms. Castro denies exercising editorial control over the video although she admits that she asked the filmmakers not to use a scene where extra students were placed in a classroom to demonstrate what future overcrowding would look like. Respondents also assert that the challenged newspaper advertisement was not prepared by district personnel or paid for with district funds. They argue that the board members whose names appeared in the advertisement were exercising their rights to express their opinions as individual citizens. Respondents also deny that the superintendent or other district personnel appeared at private meetings to advocate passage of the proposition. They contend that school personnel followed a longstanding policy of making themselves available to the community, that all informational meetings were open to the public and that personnel at those meetings presented facts and did not advocate for a "yes" vote.

At the outset, I note that respondents object to petitioners’ 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 petitioners’ submission, 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.

A board of education has a right to present informational material to the voters concerning a proposed annual budget or other propositions (Education Law "1716, Appeal of Weaver, 28 Ed Dept Rep 183, Decision No. 12,076). A school district may disseminate only objective, factual information (Phillips v. Maurer, 67 NY 2d 672; Application of Hennessey, 37 Ed Dept Rep 494, Decision No. 13,911; Appeal of Crawmer, 35 id. 206, Decision No. 13,517). "To educate, to inform, to advocate or to promote voting on any issue may be undertaken, provided it is not to persuade nor to convey favoritism, partisanship, partiality, approval or disapproval...of any issue, worthy as it may be" (Stern v. Kramarsky, 84 Misc. 2d 447). While a board of education may disseminate information "reasonably necessary" to educate and inform voters, its use of district resources to distribute materials designed "to exhort the electorate to cast their ballots in support of a particular position advocated by the board" violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Maurer, supra; Appeal of Allen, 32 Ed Dept Rep 69, Decision No. 12,761). Moreover, it is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election (Appeal of Dinan, 36 Ed Dept Rep 370, Decision No. 13,752; Appeal of Carroll, 33 id. 219, Decision No. 13,030; Appeal of Weaver, supra). Statements that do not specifically urge a "yes" vote may nevertheless violate the holding in Phillips v. Maurer, supra, if such statements otherwise seek to persuade or convey support for a particular position (Appeal of Hubbard, 39 Ed Dept Rep 363, Decision No. 14,259; Appeal of Miller, 39 id. 348, Decision No. 14,256; Appeal of Meyer, et al., 38 id. 285, Decision No. 14,034). Even indirect support, such as a school board giving a PTA access to its established channels of communication with parents so the PTA may espouse a partisan position that the board itself was prohibited from doing directly, has been deemed improper (Stern v. Kramarsky, supra; Appeal of Meyer, et al., supra; Appeal of Saba, 36 Ed Dept Rep 233, Decision No. 13,710; Appeal of Allen, supra).

Under these standards, it was improper for respondents to facilitate production of a videotape by an "independent" group which advocates support for the proposed capital project. Respondents bear the legal responsibility to control access to all district property. They granted the filmmakers access not just to school grounds or hallways, but to classrooms as well. Respondent Castro accompanied the filmmakers as they recorded classroom scenes. Thus, the filmmakers could not have produced the video without respondents’ support. This support of an advocacy group’s efforts created, at a minimum, the appearance of impropriety. Respondents' decision to facilitate production of the video by granting access to school buildings and students is analogous to providing access to the school’s channels of communication with parents, which I and previous Commissioners have found to be improper (Appeal of Saba, supra; Appeal of Allen, supra). Moreover, the record does not indicate that similar access was available to individuals or groups who opposed the proposed capital project, further supporting the conclusion that such activity was partisan.

I have examined the documents challenged by petitioners and attached as exhibits to the petition. These include the March and June issues of the district’s newsletter "Reflections," the sheet headed "Croton-Harmon Schools Information," the document entitled "Building our Children’s Future" and the document headed "Croton-Harmon Schools Building Referendum" dated May 2000. I conclude that, taken in context, most of the statements challenged by petitioners do not constitute improper advocacy. For the most part, the documents do not advocate or seek to persuade voters to take a particular position. Rather, they serve to educate and inform the public, to introduce facts and to set forth respondents’ rationale for proposing the capital project.

The June 2000 issue of the newsletter "Reflections", which is attached to the petition as Exhibit F, includes on page 4 the statement that "A ‘no’ vote would impact the whole community, because solid property values are linked to good schools. Potential homebuyers would be discouraged by overcrowded classrooms and a lack of educational and extracurricular opportunities. It would also impact our ability to attract and retain excellent teachers." This statement clearly is intended to persuade the public to vote "yes" by raising fears about the negative consequences of a "no" vote. It does not set forth objective facts designed to educate or inform the public. Thus, this statement constitutes improper advocacy (Stern v Kramarsky, supra; Appeal of Eckert, 40 Ed Dept Rep , Decision No. 14,520). Several other statements in respondents’ materials link property values to the strength of the school system. While these statements present close questions, I find that they attempt to convey factual information and do not constitute improper advocacy. I caution respondents, however, to refrain from speculating about the effect future proposals might have on property values in an attempt to persuade the public to take a particular position on such propositions.

I also note that one of respondents’ documents concededly overstates the amount of State aid that would be available if the proposed capital project were approved. Other documents contain more accurate information and respondents assert that efforts were made to correct any errors at a public informational meeting. The record does not support the conclusion that respondents intended to mislead the voters.

I also have examined the document attached to the petition as Exhibit C, a letter signed by the district’s Athletic Director and the two co-presidents of the Croton Booster Club. The letter, which is printed on Athletic Department letterhead, describes the athletic facilities to be financed by the proposed bond issue and asks recipients to "please support this bond." Respondents concede that the letter constitutes impermissible advocacy. However, they argue that it was produced without their knowledge or approval and that the Booster Club assumed the expense of preparing and distributing the letter. While the record does not establish that respondents caused or acquiesced in the distribution of the letter, I remind respondents that they are accountable for the use of district resources (Appeal of Miller, 39 Ed Dept Rep 348, Decision No. 14,256; Appeal of Lawson, 38 id. 713, Decision No. 14,124) and that they should take such measures as are necessary to prevent the unauthorized distribution of partisan materials by district employees.

The burden of proof in an appeal to the Commissioner rests with the petitioner (Appeal of Gravink, supra). Here, petitioners have failed to prove that respondent Castro or other school district personnel conducted meetings regarding the proposed capital project that were not open to the public or that they improperly advocated for passage of the proposition at such informational meetings. Respondent Castro states in a sworn affidavit that all meetings at which she spoke were open to the public and that she continued her longstanding practice of making herself available to a variety of community groups to present information about the schools. There is no evidence in the record that any member of the public sought to attend such meetings and were excluded.

To invalidate the results of a school district election, petitioners must establish not only that irregularities occurred, but also that any irregularities actually affected the outcome of the election, were so pervasive that they vitiated the electoral process or demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Lawson, supra; Appeal of Meyer, supra). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Lawson, supra). Where a vote is on a capital project and the financing thereof, the petitioner’s proof must contain affidavits or statements from individuals who voted in favor of the proposition that their vote would have been otherwise but for the alleged misconduct (Appeal of Meyer, supra; Appeal of Crook, 35 Ed Dept Rep 546, Decision No. 13,628; Appeal of Mandell, 35 id. 538, Decision No. 13,625).

Here, petitioners present an affidavit of one resident who states that she would have voted no but for the district’s advocacy. A second affiant states that she felt compelled to vote yes because the district had no contingency plan in place to protect students if the proposition did not pass. While the proposition passed by a margin of only nine votes, the evidence presented by petitioners is not sufficient to establish that any alleged irregularity affected the outcome of the referendum. Accordingly, petitioners have presented no basis upon which I could overturn the result.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondents refrain from using district funds to advocate a partisan position with respect to matters that are the subject of a school district vote, in accordance with this decision.

END OF FILE