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Decision No. 15,220

Appeal of LINDA TOWLER from action of the Board of Education of the Mount Sinai Union Free School District regarding an annual budget vote.

Decision No. 15,220

(May 12, 2005)

Kevin A. Seaman, Esq., attorney for respondent

 

MILLS, Commissioner.--Petitioner challenges the actions of the Board of Education of the Mount Sinai Union Free School District ("respondent") in conducting its 2004-2005 budget vote. The appeal must be dismissed.

On May 18, 2004, district voters rejected respondent's proposed 2004-2005 budget. Respondent amended its proposed budget and, on June 22, 2004, presented three propositions to the voters. Proposition I sought voter approval of the amended budget in the amount of $39,337,817. Proposition II authorized up to $183,000 additional funds "to help maintain the current level of athletic teams (middle and high schools), co-curricular activities (elementary, middle and high schools) and field trips (elementary, middle and high schools)." Proposition III authorized up to $95,000 additional funds "for building security guard services."

Prior to both the May 18 and June 22, 2004 budget votes, respondent distributed material relating to the proposed budget informing voters of the consequences of a rejected budget, including information regarding the contingency budget respondent would adopt. On June 22, 2004, voters approved the proposed budget (Proposition I) and Proposition II, but rejected Proposition III. This appeal ensued. As part of her appeal, petitioner requested a stay of the appropriation of money for the budget (Proposition I) and Proposition II. Petitioner's request for a stay was denied on July 22, 2004.

Petitioner challenges respondent's conduct in relation to both budget votes. She contends that respondent was not authorized to submit separate propositions for the items set forth in Propositions II and III, but was required to include such items as part of the proposed budget in Proposition I. Petitioner alleges that respondent incorrectly calculated the contingency budget that might result should voters defeat the proposed budget, and that this alleged erroneous information was distributed to district residents prior to both votes. Petitioner also challenges the accuracy of the tax rate information that respondent provided prior to the votes and claims that respondent failed to append to the budget the school district report card and other required documents. Petitioner further asserts that a brochure respondent distributed prior to the votes contained erroneous information regarding the programmatic impact of a contingency budget and also described the propositions using different language than that which appeared on the sample ballot. Petitioner asks that I nullify the June 22, 2004 vote. She also requests an independent audit of respondent's internal controls and procedures. Finally, petitioner seeks an award of costs related to her appeal.

Respondent asserts that the appeal is untimely and that the equitable doctrine of laches also requires dismissal. Respondent maintains that it fully complied with all requirements of the Education Law with respect to both budget votes and that there is no basis for overturning the results of the June 22, 2004 vote.

As a procedural matter, petitioner's reply contains material that buttresses allegations in the petition. 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 support allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Application of Lilly, 43 id. 459, Decision No. 15,050). Therefore, while I have reviewed petitioner's reply, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal is untimely to the extent that petitioner challenges the May 18, 2004 budget vote and respondent's conduct in relation to that vote. An appeal to the Commissioner must be commenced within 30 days of the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR �275.16). Petitioner initiated this appeal by service of a petition on June 30, 2004 - more than 30 days after the May 18, 2004 budget vote. Petitioner offers no excuse for the delay except to correctly note that her appeal from the subsequent June 22, 2004 budget vote is timely and is based on similar alleged irregularities. Because petitioner did not appeal the May 18, 2004 budget vote within the required time period, her challenge to respondent's conduct in relation to that vote is dismissed.

Respondent contends that the entire appeal should be dismissed under the doctrine of laches because petitioner waited until after the June 22, 2004 re-vote to commence it, asserting violations that allegedly occurred and were known to petitioner prior to the May 18, 2004 budget vote.

Laches may bar "the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party" (Skrodelis v. Norbergs, 272 AD2d 316; Appeal of Y.M., 43 Ed Dept Rep 193, Decision No. 14,968). Petitioner asserts that respondent repeated its alleged improper conduct in connection with the June vote. As noted above, petitioner initiated this appeal on June 30, 2004 - within 30 days of the challenged June 22, 2004 budget re-vote. Therefore, petitioner's claims regarding that vote and respondent's conduct in relation to it are clearly timely (see 8 NYCRR �275.16). Moreover, had petitioner commenced an appeal contesting actions taken by respondent prior to the scheduled June 22, 2004 re-vote, some or all of such claims could have been considered premature. Because the appeal from the June 22, 2004 vote is timely and petitioner's claims relate to respondent's conduct repeated again in connection with that vote, the doctrine of laches does not apply.

Petitioner's appeal from the June 22, 2004 budget vote must be dismissed on the merits. 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, et al. v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Brown, 43 Ed Dept Rep 231, Decision No. 14,980; Appeal of Stolbach, 43 id. 218, Decision No. 14,977) 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, affdsubnom, 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).

Although petitioner sets forth a number of alleged irregularities in relation to the June 22, 2004 budget vote, she does not provide a single affidavit from any individual stating that he or she would have voted differently but for the alleged irregularities. Indeed, the petition does not even contain an allegation that any vote was affected. Without proof that an irregularity occurred and affected the outcome of the vote, there is no basis on which to overturn the result.

Petitioner also alleges that respondent's budget process "was informal to the point of laxity." In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he seeks relief (8 NYCRR �275.10; Appeal of Polmanteer, et al., 44 Ed Dept Rep 221, Decision No. 15,155; Appeal of Antoniadis, 44 id. 84, Decision No. 15,106). Specifically, petitioner alleges that respondent failed to append to the budget the school district report card or a detailed statement of compensation for the superintendent and other administrators, as required by Education Law �1716. The petition contains no affidavit or exhibit in support of this allegation. Respondent denies the allegation and submits an affirmation of the school attorney and an affidavit of the superintendent attesting to respondent's compliance with these requirements. Petitioner's conclusory allegations are insufficient to carry her burden.

Petitioner also claims that a budget brochure distributed to district residents prior to the June 22, 2004 vote included only the calculated tax rate that would result from approval of the proposed budget set forth in Proposition I and did not inform voters of the total tax rate impact should they approve Propositions II and/or III. However, by affidavit of its superintendent, respondent submits a postcard also mailed to district residents separately setting forth the tax rate implications of each proposition.

In addition, petitioner asserts that respondent distributed information to the voters incorrectly inferring that certain programs or activities would be curtailed or eliminated if it was required to adopt a contingency budget. Petitioner contends that respondent was required to inform voters that, where a donation is received covering the full cost of a program or activity, respondent would be permitted to offer such program or activity. Petitioner cites no legal basis, and indeed there is none, for her claim.

Finally, petitioner claims that, in a budget brochure mailed to district residents, respondent described the content of Propositions II and III using "different language" than that used in the sample ballot. However, petitioner neither claims nor offers evidence that any voter was confused or misled by the language used. Petitioner has failed to prove any of the allegations set forth in support of her claim of informality with respect to the June 22, 2004 vote.

In sum, petitioner has failed to demonstrate that any irregularities actually affected the outcome, were so pervasive that they vitiated the electoral process or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.

Petitioner requests that I order an independent audit of respondent's internal controls and procedures. To the extent that petitioner requests an investigation of respondent's fiscal procedures to establish her claims, I note that an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Laurie, supra; Appeal of Julian, et al., 42 Ed Dept Rep 300, Decision No. 14,861).

In view of this disposition, I need not address petitioner's other claims.

THE APPEAL IS DISMISSED.

END OF FILE