Appeal of THOMAS C. O"BRIEN, BARBARA O"BRIEN and ANNE PRICE from action of the Board of Education of the City School District of the City of Corning regarding an election.

 

 

(May 12, 2003)

 

Sayles & Evans, attorneys for respondent, James F. Young, Esq., of counsel

 

MILLS, Commissioner.--Petitioners, residents and taxpayers of the City School District of the City of Corning ("the district"), challenge the May 21, 2002 school board election conducted by the Board of Education of the City School District of the City of Corning ("respondent").  The appeal must be dismissed.

At a special meeting on June 19, 2001, district voters approved a capital project known as "Option 2."  The facts regarding the history and financing of Option 2 are set forth in Appeal of Gehl, 42 Ed Dept Rep    , Decision No. 14,857, in which I found that respondent had entered into a lease-purchase agreement that did not comply with certain statutory requirements.

In this appeal, petitioners contend that candidates who favored Option 2 were elected to respondent board on May 21, 2002 as a result of respondent"s misrepresentations and improper electioneering.  Petitioners commenced this appeal on May 28, 2002.  Interim relief was denied on June 6, 2002.

Petitioners request that, among other things, I set aside the election results, order a new election, instruct respondent to refrain from improper electioneering and resolve the issues raised in Appeal of Gehl.  Respondent generally denies any wrongdoing and also alleges that petitioners have failed to join necessary parties, including the successful board candidates.  Because Appeal of Gehl has already been decided, petitioners" request that I resolve the issues raised in Gehl is moot.

Before turning to the merits, I will address a number of procedural matters.  The purpose of a reply is to respond to procedural defenses or new material contained in an 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 (Application of Bean, 42 Ed Dept Rep    , Decision No. 14,810; Appeal of Huber, et al., 41 id.    , Decision No. 14,676; Appeal of Balen, 40 id. 479, Decision No. 14,532).  Similarly, a memorandum of law may not be used to add new assertions that are not part of the pleadings (Appeal of Grinnell, 37 Ed Dept Rep 504, Decision No. 13,914; Appeal of Coombs, et al., 34 id. 253, Decision No. 13,301; Appeal of Bd. of Educ., Tuxedo UFSD, 33 id. 626, Decision No. 13,171). Accordingly, while I have reviewed petitioners" reply and memorandum of law, I have not considered those portions that contain new allegations that are not responsive to new material or affirmative defenses in respondent"s answer.

Several months after instituting this appeal, petitioners sought permission pursuant to "276.5 of the Commissioner"s regulations to submit 49 affidavits from district voters in an apparent attempt to establish that the allegedly misleading information disseminated by respondent affected the outcome of the election.  Petitioners do not explain why they did not submit this information with their petition (see, Appeal of Mackay, 39 Ed Dept Rep 815, Decision No. 14,391).  Moreover, I find that the affidavits have little, if any, probative value.  The affidavits do not reference any specific improper statement made by any district officer or official.  Nor do they specify which candidate the affiants actually voted for, or would have voted for, if not for the allegedly misleading information.  Under these circumstances, I decline to consider petitioners" submission.

The appeal must be dismissed because petitioners have failed to join necessary parties.  Section 285.8(d) of the Commissioner"s regulations provides in pertinent part: "If an appeal involves the validity of a school district meeting or election, or the eligibility of a district officer, a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent" (emphasis added).  In the appeal before me, the successful candidates have not been named as respondents, and there is no proof that they were ever served with a copy of the notice of petition and petition.  When joinder is required but not effected, the appeal must be dismissed (Appeal of Jordan, 39 Ed Dept Rep 551, Decision No. 14,308; Appeal of Levine, 38 id. 768, Decision No. 14,138). 

Petitioners" request to amend the relief sought in the petition does not cure their failure to join necessary parties.  Petitioners propose that instead of overturning the May 21, 2002 election, I enjoin respondent from proceeding with Option 2 until a "new School Board is seated following the next School Board election."  Petitioners have failed to establish any legal basis for such relief. If I were to find that improprieties affected the outcome of the election, the proper remedy would be to invalidate the election results and order a new election.  Moreover, petitioners" proposed relief does not change the fact that petitioners essentially challenge the successful candidates" right to hold office, and therefore, are required to comply with this joinder requirement.  Under these circumstances, I deny petitioners" application to amend their petition.

Even if the appeal were not dismissed on procedural grounds, I would dismiss it on the merits.  To overturn an election, petitioner must prove improper conduct on the part of respondents, such as a violation of the Education Law or the Commissioner"s regulations (Appeal of D"Oronzio, 41, Ed Dept Rep ___, Decision No. 14,745; Appeal of Maliha, 41 id.   , Decision No. 14,716; Appeal of Huber, et al., supra).  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 Grant, 42 Ed Dept Rep ___, Decision No. 14,816) were so pervasive that they vitiated the electoral process (Appeal of Grant, supra), 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'dsubnomMatter of Capobianco v. Ambach, 112 AD2d 640). 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 Grant, supra; Appeal of Huber, et al., supra).  Moreover, petitioners have the burden of establishing all the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Grant, supra; Appeal of Finkel, 41 Ed Dept Rep ___, Decision No. 14,619).

It is well settled that while a board of education may distribute factual information regarding a vote or an 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, 67 NY2d 672; Appeal of D"Oronzio, supra).  Statements that do not specifically urge support of a particular candidate may nevertheless violate the holding in Phillips v. Maurer, supra, if such statements otherwise seek to convey support for a particular candidate (see, Appeal of D"Oronzio, supra). 

Petitioners claim that in the year preceding the election, respondent misrepresented certain facts related to the high school construction project to ensure the election of "pro-Option 2 candidates."  Petitioners allege, among other things, that respondent exaggerated the financial losses it would suffer if it decided not to proceed with the project.  Petitioners" proof consists almost entirely of newspaper articles that quote either respondent"s superintendent, respondent"s attorney -- who is not a school officer within the meaning of Education Law "310 (Appeal of Phillips, 41 Ed Dept Rep    , Decision No. 14,595; Appeal of McGinley, 23 Ed Dept Rep 350, Decision No. 11,244) -- or an individual who advised the district on financial aspects of the project. 

The majority of the statements made by respondent"s superintendent were made in the context of the ongoing public debate in the district concerning the advisability of respondent"s facilities project.  None of the statements urge voters to support a particular candidate, nor is there any evidence that they were designed to do so.  Moreover, petitioners do not establish that any of the superintendent"s actions actually affected the outcome of the vote.  Petitioners did not submit any timely affidavits from district voters who voted for the winning candidates establishing that they would have voted differently but for the allegedly misleading information (Appeal of Hoefer, 41 Ed Dept Rep    , Decision No. 14,664; Appeal of Krantz, 38 id. 485, Decision No. 14,077).

     Petitioners also complain that respondent improperly promoted "pro-Option 2 candidates" at its May 1, 2002 board meeting.  Petitioners allege, among other things, that respondent"s attorneys and superintendent made a presentation at the request of the board president outlining possible legal ramifications of any decision by respondent to abandon or alter the high school construction project.  Petitioners allege that although this presentation was made under the guise of "legal advice," its objective was to influence the outcome of the election.

I find no merit to petitioners" claim.  The record reflects that, in the course of the public debate over the advisability of proceeding with Option 2, various statements were made regarding respondent"s financial obligations in the event it abandoned the high school construction project.  Respondent"s attorney explains that at respondent"s May 1, 2002 meeting, he presented his legal opinion regarding respondent"s legal obligations.  Petitioners cite no statutory or regulatory provision prohibiting such a presentation.  Further, there is nothing in the record to indicate that respondent"s attorney, superintendent or any board member urged support for a particular candidate.  While petitioners may disagree with the legal opinions expressed by respondent"s attorney, they have failed to establish that the presentation was misleading or otherwise improper, or that it was designed to influence voters to support any particular candidate.  Further, petitioners have failed to establish that this presentation had any effect on the outcome of the election.  Nor have petitioners established that any of the alleged irregularities were so pervasive that they vitiated the fundamental fairness of the electoral process.

In light of this disposition, I need not address the parties" remaining contentions.

 

THE APPEAL IS DISMISSED.

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