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Decision No. 15,198

Appeal of MINDY WARSHAW from action of the Board of Education of the City School District of the City of Long Beach regarding the conduct of an annual budget vote.

Decision No. 15,198

(April 1, 2005)

Ingerman Smith L.L.P., attorneys for respondent, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges certain actions of the Board of Education of the City School District of the City of Long Beach ("respondent") with respect to the annual budget vote held on May 18, 2004. The appeal must be dismissed.

On May 18, 2004, respondent conducted its annual district meeting to vote on the district's budget. At that meeting, the budget was approved by a margin of 175 votes. This appeal ensued.

Petitioner asserts that respondent improperly used district resources to advocate a "yes" vote on the budget by permitting the district's parent-teacher association ("PTA") to distribute pro-budget flyers using teacher mailboxes and sending such flyers home with students. Petitioner claims that respondent's action violates a stipulation of settlement of two prior appeals challenging similar action by the board. Petitioner also claims that respondent's high school principal made an announcement during the school day urging students and parents to vote "yes" on the budget. Petitioner seeks annulment of the May 18, 2004 budget vote and an order directing a re-vote on the budget. She also seeks removal of Lynn Gergen as president of the district's PTA and an order barring the PTA from distributing literature to students at school. As part of her appeal, petitioner requested a stay of any expenditures authorized by the May 18, 2004 budget. Petitioner's request for a stay was denied on June 29, 2004.

Respondent denies that it engaged in any improper electioneering. Respondent also asserts that, even if improper electioneering occurred, petitioner failed to demonstrate that it affected the outcome of the budget vote. Finally, respondent asserts that petitioner may not maintain the appeal on behalf of a class of individuals.

Class certification is denied to the extent that petitioner attempts to bring this appeal on behalf of a class of "all others similarly situated." An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR �275.2; Appeal of Cartagena, 43 Ed Dept Rep 272, Decision No. 14,992; Appeal of Recore, 42 id. 283, Decision No. 14,856). Petitioner's pleadings are entirely devoid of any allegations addressing those criteria. Class status, therefore, is denied.

To the extent that petitioner seeks removal of Lynn Gergen as president of the district's PTA, the appeal must be dismissed for failure to join her as a necessary party. 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 Merandy, 44 Ed Dept Rep 122, Decision No. 15,119; Appeal of Stolbach, 43 id. 218, Decision No. 14,977; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876). Section 275.8 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 Stolbach, supra; Appeals of Tesser and Kavitsky, supra). It is the notice of petition which alerts a party to the fact that he or she is required to appear in the appeal and to answer the allegations contained in the petition (8 NYCRR ��275.11, 275.13; Appeals of Tesser and Kavitsky, supra; Appeal of Monahan, 42 Ed Dept Rep 206, Decision No. 14,824). Petitioner failed to name Ms. Gergen as a respondent in the caption of the petition and failed to personally serve her with the notice of petition and petition. Therefore, those portions of the appeal seeking relief as against Ms. Gergen are dismissed.

The petition must also be dismissed on the merits. While a board of education may distribute factual information to educate and inform voters regarding a vote or election, the 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, 67 NY2d 672; Appeal of Hager and Scheuerman, 43 Ed Dept Rep 363, Decision No. 15,019; Appeal of Stolbach, supra). Statements that do not specifically urge a "yes" vote may nevertheless violate the holding in Phillips v. Maurer, if such statements otherwise seek to persuade or convey support for a particular position (Appeal of Hager and Scheuerman, supra; Appeal of Stolbach, supra). 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 Hager and Scheuerman, supra; Appeal of Eckert, 40 Ed Dept Rep 433, Decision No. 14,520). Even indirect support, such as a school board giving a PTA access to its established channels of communication to parents to espouse a partisan position that the board itself was prohibited from doing directly, has been deemed improper (Appeal of Hager and Scheuerman, supra; Appeals of Tesser and Kavitsky, supra).

In an appeal to the Commissioner, petitioner has the burden of establishing a clear legal right to the relief sought and to establish facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Brown, 43 Ed Dept Rep 231, Decision No. 14,980; Appeal of Stolbach, supra; Appeals of Tesser and Kavitsky, supra). Petitioner asserts that, although the PTA flyer does not include any specific statement to vote "yes" on the budget, the information included "threatened massive cuts" if the budget was defeated and was meant to impose fear as a means of obtaining a "yes" vote. I have reviewed the flyer and find that it does not urge residents to vote in any particular manner. It presents information regarding the rate of the budget increase, the rate of the proposed tax levy, comparative tax rate information, student test score and college attendance information, and contingency budget information should the proposed budget be defeated. I conclude that the challenged flyer is primarily factual and informational in nature and cannot be fairly construed as advocating a "yes" vote.

Petitioner also asserts that the principal of respondent's high school made an announcement during school hours urging eligible students to vote in favor of the proposed budget and asking all students to tell their parents to vote for the budget. Respondent submits the principal's affidavit denying that allegation and petitioner did not submit a reply. Petitioner, thus, has not demonstrated that respondent engaged in improper electioneering in connection with the May 18, 2004 budget vote.

Moreover, to invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also that the irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Brown, supra; Appeal of Stolbach, supra) were so pervasive that they vitiated the electoral process (Appeal of Brown, supra; Appeal of Stolbach, supra; Appeal of Laurie, 42 Ed Dept Rep 313, Decision No. 14,867) or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Brown, supra; Appeal of Stolbach, supra; Matter of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, aff'd sub nom, Capobianco v. Ambach and Bd. of Ed., Glen Cove City School Dist., 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 Brown, supra; Appeal of Stolbach, supra; Appeal of Laurie, supra).

At the May 18, 2004 annual meeting, the budget was approved by a margin of 175 votes. Petitioner submits only two affidavits from district voters. In each affidavit, the voter challenges the content of the flyer and its distribution via teacher mailboxes and to students. However, neither voter indicates that the flyer influenced her vote. Moreover, given the margin of approval, petitioner has failed to establish that the alleged irregularity affected the outcome of the vote.

In sum, I find that petitioner has failed to establish that any alleged irregularity actually affected the outcome, demonstrated laxity in adherence to the Education Law or vitiated the fundamental fairness of the vote. In view of this determination, I need not address the parties' remaining contentions.

THE APPEAL IS DISMISSED.

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