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Decision No. 14,871

Appeal of BARBARA CARROLL, MARGARET EMERSON and JOHN MURPHY from actions of Alan Derry, Superintendent of the New Paltz Central School District regarding a school district election.

 

 

(May 23, 2003)

 

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

 

MILLS, Commissioner.--Petitioners challenge certain actions taken by Alan Derry, the superintendent of the New Paltz Central School District ("respondent"), in connection with the May 21, 2002 school district election.  The appeal must be dismissed.

Petitioners allege that respondent improperly used district resources to influence voters "toward specific vote outcomes favored by the Superintendent."  They further allege that respondent targeted certain communications toward individuals who were likely to support the outcome favored by respondent.  Accordingly, petitioners request that I instruct respondent to desist from any future ""improper advocacy" in publications, letters, and public statements or from any practice of "targeting" particular favored constituencies."

Respondent asserts that the petition must be dismissed as untimely as to all allegations regarding actions that occurred more than 30 days prior to the date on which the petition was served; that the information communicated to district residents was informational only, and was based upon factual and objective data; and that the information concerning the annual election was disseminated to all district residents, and was not "targeted" to certain potential voters.  Accordingly, respondent asserts that the petition must be dismissed in its entirety.

                Section 275.16 of the Commissioner"s regulations requires that an appeal be instituted within 30 days from the making of the decision or the performance of the act complained of.  Petitioners commenced this appeal on June 14, 2002.  With the exception of one letter, dated May 17, 2002, all of the acts complained of occurred more than 30 days prior to the commencement of this appeal.  Petitioners do not request that I annul the election or order a new vote.  Because the validity of the election itself is not at issue, petitioners" claims regarding those acts that occurred more than 30 days before the appeal was commenced are untimely and the appeal is dismissed as to those claims (Appeal of Lambert, 37 Ed Dept Rep 599, Decision No. 13,937; Appeal of Pucci, 31 id. 3, Decision No. 12,546; Appeal of Scanio, 22 id. 315, Decision No. 10,974).

     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; Appeal of Goldin, 40 Ed Dept Rep 628, Decision No. 14,572).  However, public resources cannot be used 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).

     Petitioners assert that while "part of the May 17th letter simply informs parents of the budget vote and school board election on May 21, 2002, the rest of the letter is highly partisan in nature."  They allege that the superintendent included in the letter "subjective assessments" about the achievements of the district and that, in so doing, the superintendent was praising existing board policies "and, by implication, incumbent candidates supportive of the Superintendent."

     Petitioners further allege that the letter is improper because of the superintendent"s inclusion of this paragraph:

There has been much written recently about the May 21st elections from many perspectives.  Some of the writing is overly emotional and some things being said are so exaggerated that they are flat out inaccurate.  In fact, many things being written are simply unfair and of questionable truth.  I cannot and will not respond to all of this except to advise you to use common sense in your choices and please become involved in this democratic process and vote.  As I have said earlier, it is a great example to your child(ren).

Petitioners contend that "the overall construction and flow of Superintendent Derry"s letter, therefore, is highly partisan in nature and intent."         

     I find no merit to petitioners" claims of partisanship in the May 17 letter.  The statements in the letter regarding the magnitude of the proposed budget increase and the academic successes of the district were all based upon objective, verifiable information.  The more general statements (e.g., "In addition, our extra-curricular activities in music, art, and sports have, again, been superlative.") are mere platitudes, and do not exhort the electorate to vote in any particular way or otherwise convey favoritism, partisanship, partiality, approval or disapproval for the budget proposal or for any particular candidates.  Likewise, the paragraph concerning disagreements in the community regarding the election does not advocate for or against any particular  position or candidate.

     Finally, petitioners allege that respondent improperly targeted a select audience by sending the May 17 letter home with elementary school children and mailing it to the parents of high school students.  Respondent denies that allegation, claiming that "the same factual information and encouragement to vote message was disseminated to all voters of the District through a District-wide mailing of [its] newsletter." 

While some of the information contained in the May 17 letter was also contained in the newsletter, and while the overarching message of each communication was a non-partisan request for residents to vote, I do not agree that the May 17 letter was "largely a restatement of the information contained [in] the April 2002 edition of [the newsletter]."  In particular, the paragraph concerning differing opinions in the community that was included in the May 17 letter did not appear in the newsletter. Furthermore, the newsletter was mailed to district residents at some point in April, while the letter was disseminated mere days before the election.

The determination whether a school district engaged in targeting is a question of fact dependent upon the circumstances of each case.  The use of specialized mailings or distributions to parents of students or other selected groups may in some instances suggest the appearance of partisan activity (Appeal of Schadtle, 38 Ed Dept Rep 599, Decision No. 14,102; Appeal of Sowinski, 34 Ed Dept Rep 184, Decision No. 13,276).  The record before me, however, does not establish that respondent intentionally sought to target selected groups more likely to support the election outcomes he allegedly favored.  Instead, it appears that respondent merely attempted to encourage all district residents to participate in the May 21 vote.  I remind respondent, however, of the prohibition against targeting and I advise respondent that it is his responsibility to inform all district residents, not only parents of students, of upcoming elections and votes.

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

THE APPEAL IS DISMISSED.

END OF FILE