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Decision No. 14,572

Appeal of DIONE GOLDIN from action of the Board of Education of the Wappingers Central School District and Wayne F. Gersen, Superintendent of Schools, relating to a special district meeting.

Decision No. 14,572

(May 7, 2001)

Shaw & Perelson, LLP, attorneys for respondents, Michael K. Lambert, Esq., of counsel

MILLS, Commissioner.--Petitioner, a resident of the Wappingers Central School District, challenges certain actions taken by respondents with respect to a special district meeting to consider a school district construction project. The appeal must be dismissed.

On February 7, 2000, respondent board of education adopted two resolutions to submit the following two propositions to district voters at a special district meeting to be held on March 28, 2000:

PROPOSITION NO. 1

Shall the following resolution be adopted, to wit:

RESOLVED, that the Board of Education of the Wappingers Central School District, is hereby authorized to construct additions to and to reconstruct the District's high schools, at a maximum estimated cost of $17,941,700, including original furnishings, equipment, machinery, apparatus, appurtenances, and incidental improvements and expenses in connection therewith, at a maximum estimated cost of $17,941,700; and that the sum of $17,941,700, or so much thereof as may be necessary, shall be raised by the levy of a tax upon the taxable property of said School District and collected in annual installments as provided by Section 416 of the Education Law, and, in anticipation of such tax, obligations of said School District shall be issued.

PROPOSITION NO. 2

Shall the following resolution be adopted, to-wit:

RESOLVED, that the Board of Education of the Wappingers Central School District, is hereby authorized to reconstruct various District buildings, including original furnishings, equipment, machinery, apparatus, appurtenances, and incidental improvements and expenses in connection therewith, at a maximum estimated cost of $2,255,175; and that the sum of $2,255,175, or so much thereof as may be necessary, shall be raised by the levy of a tax upon the taxable property of said School District and collected in annual installments as provided by Section 416 of the Education Law, and, in anticipation of such tax, obligations of said School District shall be issued.

Petitioner alleges that the wording of the two propositions is vague and lacks specificity so as to circumvent the intent and provisions of Local Finance Law "41.10, is unacceptable in that it groups multiple buildings with assorted repairs into one proposition, and fails to provide necessary factual information and data to enable voters to make an informed decision.

In addition, petitioner alleges that respondents have "acted imprudently" by submitting the bond referendum for approval without ordering any preliminary studies, such as data to be submitted to SED for evaluation of enrollment figures, estimated State aid studies and environmental impact studies. Petitioner also complains that no public hearing was held to provide the public with an opportunity to comment on the proposed propositions.

Petitioner further alleges that respondents have impermissibly used district funds to seek to persuade the public to vote for the propositions. Petitioner alleges that as part of this attempt respondent distributed a newsletter, "WCSD In Print", flyers and other materials that contained false and misleading information, conjecture and partisan statements with the intent to elicit a favorable vote on the propositions. Petitioner alleges that the president of respondent board, in his official capacity and not as a private citizen, spoke to members of the Rotary Club at a meeting that was closed to the public and advocated a partisan position, and that the vice president of respondent board wrote an article in a local newspaper that contained false information on the safety of school facilities and advocated in favor of passage of the propositions. Petitioner further alleges that at a "Superintendent's Coffee" held at Gayhead Elementary School, the district inserted a slip of paper in a flyer distributed at the meeting, that contained misleading information that district taxes "will not be affected at all because of the bond." Petitioner further alleges that respondents used the district website to disseminate partisan positions with respect to the propositions.

Petitioner also alleges that on February 28, 2000, respondent board violated Local Finance Law "165.00 by adopting a resolution transferring the fund balances from a May 1998 bond referendum fund and a December 1998 bond referendum fund to the district"s debt service fund to offset future debt service for school years 2000-01 through 2003-04. Petitioner alleges that this action was taken in anticipation of the voters approval of the two propositions at issue in this appeal and thus permitted respondent superintendent to claim that passage of the propositions will "not increase taxes", in a "ploy" to induce voters to cast a favorable vote on the propositions.

In addition, petitioner alleges that respondents have repeatedly scheduled events to reach only those individuals most likely to support the propositions. Petitioner further alleges that no public meetings have been held at non-district locations and no attempt was made to inform the public where and when district events would take place.

Petitioner requests that I take action to preclude further partisan activity or impermissible advocacy by respondents with respect to school district votes; that I find that respondents' actions have compromised the district"s ability to conduct a fair election and that I suspend the March 28, 2000, vote until all district voters are equally and honestly informed about the issues related to the vote. Petitioner further requests that I take all necessary action to address respondents' alleged misconduct, including removal of the members of respondent board who voted for the allegedly illegal resolutions or engaged in partisan activity in connection with the March 28, 2000 vote.

Petitioner commenced this appeal on March 17, 2000. By letter dated March 27, 2000, I denied petitioner's request that I stay the March 28, 2000, special district meeting. On March 28, 2000, the district voters approved Proposition No. 1 and rejected Proposition No. 2.

Respondents deny petitioner's allegations and raise several affirmative defenses, which I will address before turning to the merits.

Before addressing the affirmative defenses, I note that petitioner urges that I not consider respondents' answer on the alleged grounds that the answer is not verified, as required by 8 NYCRR 275.5. Although the original answer filed with my Office of Counsel did not include the proper verification, respondent subsequently submitted a verification page, by letter dated April 7, 2000. Therefore, under these circumstances, I will not disregard the answer (Appeal of Rotella, 40 Ed Dept Rep __, Decision No. 14,506; Application of Eisenkraft, 38 id. 553, Decision No. 14,092).

Before proceeding, I must address petitioner's reply. 8 NYCRR "275.14 limits a reply "to each affirmative defense contained in an answer." 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 that should have been in the petition (Appeal of Hollister, 39 Ed Dept Rep 109, Decision No. 14,188). Much of petitioner's reply consists of new allegations or materials that should have been included in her petition. While I have reviewed petitioner's submissions, I will not consider 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.

I note that petitioner commenced this appeal on March 17, 2000, before the March 28, 2000 vote was held, and requested, among other things, that I find respondents' actions relating to the wording, preparation and submission of the propositions presented at the March 28 vote to have compromised the district"s ability to conduct a fair election and that I suspend the vote until all district voters are equally and honestly informed about the issues related to the vote. On March 27, 2000, I denied petitioner's request for a stay of the special district meeting and suspension of the vote, and the meeting and vote were allowed to proceed. I also take administrative notice that, although this petitioner and other individuals subsequently commenced a separate appeal (Appeal of Goldin, et al., Appeal No. 16886) to void the results of the March 28, 2000 vote, the petitioners in that appeal do not raise any challenges to the validity of the propositions, despite having the opportunity to do so. Therefore, since the special district meeting vote on the propositions has been held, the petition in this appeal must be dismissed as moot to the extent that it seeks relief with respect to the propositions (Appeal of Bitteker, 39 Ed Dept Rep 608, Decision No. 14,326). I also note that since Proposition No. 2 was rejected by the voters at the March 28, 2000 special district meeting, the petition must also be dismissed as moot to the extent petitioner seeks relief with respect to that proposition. The Commissioner of Education will only consider 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 K.M., 39 Ed Dept Rep 301, Decision No. 14,243; Appeal of a Student with a Disability, 38 id. 91, Decision No. 13,990).

However, petitioner's allegations relating to the improper expenditure of public funds to exhort district voters to approve such proposition presents a justiciable issue and is not rendered moot by petitioner's failure to challenge the results of the election or by the rejection of such proposition (Appeal of Eckert, 40 Ed Dept Rep __, Decision No. 14,520).

Respondents contend that many of the allegations are untimely in that they relate to actions that occurred in excess of 30 days prior to the commencement of this appeal. In general, an appeal to the Commissioner must be instituted within 30 days of the making of the decision or the performance of the act complained of (8 NYCRR 275.16). Since petitioner's allegations with respect to the two propositions presented at the March 28, 2001 meeting must be dismissed as moot pursuant to the above discussion, it is not necessary for me to determine whether such allegations are untimely. However, petitioner also challenges certain alleged actions taken by respondents to misinform and/or advocate in favor of passage of the propositions. With respect to such actions, I have held that it would be unreasonable and detrimental to the efficient resolution of a petitioner's claims to require the petitioner to institute separate appeals with respect to acts comprising a series of events closely related to an election, so as to meet the 30 day requirement set forth in "275.16 (Appeal of Rampello, 37 Ed Dept Rep 153, Decision No. 13,380). Accordingly, I decline to dismiss as untimely those portions of petitioner's appeals which include allegations and exhibits relating to alleged misinformation/advocacy actions taken by respondent that are closely related to the March 28, 2000 vote, but which occurred more than 30 days before the commencement of this appeal.

I also note that certain actions alleged by petitioner, while they relate to previous elections, are offered by petitioner in an attempt to establish a pattern of alleged improper activity by respondents and not to challenge the results of those previous elections. I decline to dismiss those portions of the petition relating to such alleged actions but will consider them only in so far as they relate to petitioner's allegations concerning the March 28, 2000 special district meeting (Appeal of Schadtle and Wilcox, 38 Ed Dept Rep 599, Decision No. 14,102).

Respondent next contends that the petition should be dismissed, to the extent it seeks the removal of any individual board member, for failure to name and join such individual as a respondent. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Lawson, 38 Ed Dept Rep 713, Decision No. 14,124; Appeal of Heller, 38 id. 335, Decision No. 14,048). Section 275.8(a) of the Commissioner's Regulations requires that a copy of the petition be personally served upon each named respondent. An individual must also be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Lawson, supra). In this case petitioner has not named or personally served any individual member of respondent board of education. Accordingly, the appeal must be dismissed to the extent it seeks the removal of any board member (Appeal of Fontana, 39 Ed Dept Rep 515, Decision No. 14,297).

Respondents also allege that petitioner's Exhibit H should not be considered in this appeal because it is protected by the attorney-client privilege and was improperly and unlawfully obtained by petitioner. Exhibit H is a memorandum prepared by the attorney for respondent board of education and respondent superintendent of schools advising respondents concerning my decision in Appeal of Goldin, 39 Ed Dept Rep 323, Decision No. 14,250, a previous appeal involving this petitioner and the respondents.

Civil Practice Law and Rules "4503(a) provides in pertinent part:

"Unless the client waives the privilege, . . . any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any . . . administrative action, proceeding or hearing conducted by or on behalf of any state, municipal or local government agency . . ."

The attorney-client privilege is not limitless, and may not be invoked to aid the accomplishment of an unlawful purpose (People ex rel. Vogelstein v. Warden of County Jail, 150 Misc 714, aff'd 242 AD 611). This has traditionally been limited to cases of furthering a future crime or fraud, although some courts have suggested that the exception includes any intentional misconduct (see Alexander, Practice Commentary C4503:5, McKinney's Cons Laws of NY, Book 7B, CPLR 4503 [1992 ed.]). In any event, I have reviewed the memorandum and do not find that it falls within either the limited or more expansive interpretation of the exceptions to the privilege. The memorandum is well within the purview of appropriate comment and advice provided in the context of an attorney-client relationship. Accordingly, as a confidential communication made between the school district attorney and his clients in the course of the attorney's professional employment by the board of education, the memorandum is protected by the attorney-client privilege and, pursuant to CPLR "4503, in the absence of any waiver by respondents, may not be considered as evidence in this appeal.

Petitioner raises a number of allegations with respect to respondents" use of public funds to prepare and distribute materials relating to the proposed building project and the propositions. A board of education and superintendent of schools may use public resources to present objective, factual information to the voters concerning a proposed annual budget or propositions (Education Law "1716; Application of Hennessey, 37 Ed Dept Rep 494, Decision No. 13,911; Appeal of Crawmer, 35 id. 206, Decision No. 13,517; Appeal of Weaver, 28 id. 183, Decision No. 12,076). However, they may not use public resources to "exhort the electorate to cast their ballots in support of a particular position advocated by the board" (Phillips v. Maurer, 67 NY2d 672), or to persuade, or convey favoritism, partisanship, partiality, approval or disapproval (Stern v. Kramarsky, 84 Misc.2d 447).

Petitioner alleges that a December 1999 newsletter improperly advocates in favor of the proposed building project. Petitioner has the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Eckert, supra). Furthermore, the burden is on the petitioner to allege and prove facts upon which relief may be granted, not on the respondents to rebut conclusory allegations (Appeal of Keiling, 25 Ed Dept Rep 122, Decision No. 11,517; Matter of Lawson, 24 id. 132, Decision No. 11,343). While petitioner characterizes the newsletter as misleading and false, respondents dispute her claims and petitioner has failed to establish her allegations. I have examined the newsletter and it appears, within the context presented, to consist of a factual description of the board of education's position at that time with respect to the proposed construction project. Furthermore, unlike the situation presented in Appeal of Goldin, supra, cited by petitioner, the December 1999 newsletter was disseminated well before the propositions at issue in this appeal were approved by the board of education for submission to the voters in February 2000 and a special meeting scheduled in March 2000. Therefore, petitioner's contention that the newsletter impermissibly advocated in favor of passage of the propositions is merely speculative.

Similarly, petitioner alleges that a yellow flyer distributed by respondents makes assertions that are either misleading, unsubstantiated, vague or untrue. However, petitioner makes such allegations in a speculative, conclusory manner and fails to establish her allegations and rebut respondents' denials through sufficient proof in the record. The flyer, on its face, appears to present objective, factual information concerning the proposed building project. While petitioner may disagree with the information presented, her opinions, unsupported by factual proof, are insufficient to establish that such information is false or misleading. Again, the burden is on petitioner to prove her allegations, not on respondent to rebut her conclusory allegations (Appeal of Keiling, supra; Appeal of Lawson, supra). In addition, petitioner's reliance on a newspaper article to prove her allegations is misplaced, since newspaper articles do not constitute evidence of the truth of the statements contained in them (Appeal of Toftegaard, 25 Ed Dept Rep 159, Decision No. 11,532; Matter of Freis, 23 id. 47, Decision No. 11,130).

Petitioner further alleges that the flyer includes, as "scare tactics", certain information on the consequences to the district if the propositions are not adopted. However, as part of its efforts to inform district voters concerning a school election or vote, a board of education would not be precluded from explaining what may occur in the event a proposal is not approved by the voters, and petitioner has failed to establish that the information presented is false. Furthermore, it appears from the record that the information was provided as part of a response to frequently asked questions raised by teachers and parents.

Petitioner makes allegations regarding certain purported statements "reportedly" made by the president of respondent board at a "closed" meeting of the local Rotary Club but does not support her allegations with affidavits from individuals present at that meeting. Instead, petitioner offers her own conclusory statements and the hearsay statements of what other individuals told her. Board members and school officials may convey partisan positions on their personal time, working with other groups and resources, as long as no public resources are used (Application of Eisenkraft, supra; Application of Dinan, 36 Ed Dept Rep 370, Decision No. 13,752; Appeal of Carroll, 33 id. 219, Decision No. 13,030). Upon the record before me, I am unable to determine whether the alleged statements were made and, if made, the circumstances under which they were made. Accordingly, petitioner has failed to carry her burden of proof and the allegations must be dismissed.

In addition, petitioner makes allegations concerning certain statements made by the vice president of respondent board in a local newspaper article as well as certain purported statements made at a subsequent board meeting but again does not support her allegations with affidavits or other proof. While it is improper for a board of education, as a corporate body, to be involved in partisan activity, individual board members are entitled to express their views about issues concerning the district and engage in partisan activity, provided school district funds are not used (Appeal of Allen, 39 Ed Dept Rep 528, Decision No. 14,300). With respect to the newspaper article, there is nothing in the record to indicate that public funds were used in its preparation or dissemination. With respect to the alleged statements made at the board meeting, there is nothing in the record to establish specifically what was said and the context within which such alleged statements were made. In addition, there is nothing in the record to support petitioner's opinion that the information conveyed was false.

Petitioner also alleges that on February 28, 2000, respondent board, in an "apparent" violation of Local Finance Law section 165.00, adopted a resolution transferring fund balances from two prior, unrelated bond referendum funds to the district's debt service fund to offset future debt service for the next four school years. Petitioner speculates that this action was taken to reduce the district"s debt service so that respondents could claim that passage of the propositions at the March 28, 2001 special district meeting would not require a tax increase. Respondent board denies petitioner's allegation and contends that the transfer of fund balances is lawful and unrelated to the special district meeting.

Local Finance Law "165.00(a) provides, in pertinent part: ". . .In the event that any portion of the proceeds, inclusive of premiums, from the sale of bonds . . . is not expended for the object or purpose for which such obligations were issued, such portion shall be applied only to the payment of the principal of and interest on such obligations respectively. . ." It appears from the record that the transfer was consistent with Local Finance Law "165.00 since it was made for the purpose of offsetting future debt service payments on the two outstanding bond obligations, rather than for the purpose of reducing anticipated debt service on the project under consideration at the March 28, 2000, special district meeting, as alleged by petitioner.

Petitioner further alleges that information distributed at the Gayhead Elementary School stating that the proposed building construction bond would not affect the taxes of district residents in East Fishkill is false. However, respondents deny petitioner's allegation and petitioner fails to submit any proof to establish her conclusory allegation. Similarly, petitioner fails to submit proof to establish her conclusory allegations that the superintendent, the project architect and other members of the board of education made "rash" or deceptive statements regarding the eligibility of the project for State aid. The burden is on petitioner to prove her allegations, not on respondent to rebut her conclusory allegations (Appeal of Keiling, supra; Appeal of Lawson, supra).

Petitioner next alleges that respondents improperly targeted individuals likely to support the propositions, in an attempt to increase their turnout at the special meeting, by distributing flyers and allowing the registration of voters at open houses, coffees, musical events and other affairs held exclusively at district school buildings. The determination as to whether school district officials have engaged in the improper targeting of information to selective district voters for the purpose of affecting the result of a district election is a question of fact dependent upon the circumstances of each case (Appeal of Schadtle and Wilcox, supra). On the facts of this case, I do not find that respondents' scheduling of district events constituted improper targeting. Petitioner's allegations of targeting are speculative and conclusory, and unsupported by affidavits or other proof. Petitioner admits that the events in question were open to the public and there is nothing in the record to establish that invitations to attend the events were restricted to certain individuals or that the scheduling of the events resulted in the disproportionate attendance by those likely to favor passage of the propositions. Moreover, petitioner fails to submit any proof to establish her opinion that the appointment of teachers to assist eligible students in registering to vote in district elections "stacks the deck in favor of passage of the propositions and therefore constitutes impermissible advocacy."

Petitioner alleges, in a general manner, that "most, if not all" editions of the district newsletter, "WCSD In Print", published over the past two years have been used to "widely disseminate interested opinions and campaign propaganda regarding school district votes", but fails to connect such publications with the special district meeting at issue in this appeal other than to speculate that an article in the September 1999 issue about science labs, "sets the stage for the claim" that there is a need for more quality lab space. Such bare allegations, unsupported by any proof, are insufficient to establish petitioner's allegations of improper advocacy.

Petitioner also alleges that the March 2000 edition of the district newsletter contains partisan positions and impermissible advocacy. I have examined the newsletter and find that, on its face, the newsletter appears to present objective, factual information concerning the building project. While petitioner may disagree with the information presented, her opinions, unsupported by factual proof, are insufficient to establish that such information is false or misleading.

Petitioner also makes an application, pursuant to 8 NYCRR "276.5, to submit a videotape which was broadcast on a local cable television channel on March 19, 2000. Since the application raises new and separate allegations, I deny petitioner's application and have not considered the videotape in this appeal. Even if I were to consider the videotape, I would find that it consists of objective, factual information concerning the current conditions of the district's science laboratory classrooms and is consistent with the authority of respondent board to present informational material that is reasonably necessary to educate and inform voters concerning the issues presented at a special district meeting (Education Law "1716; Phillips v. Maurer, supra; Appeal of Weaver, supra).

I have examined petitioner's remaining allegations and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE