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Decision No. 15,394

Appeal of PATRICK HOEY and PAUL KOSOWSKI from action of the Board of Education of the Bellmore Union Free School District regarding a budget vote.

Decision No. 15,394

(March 30, 2006)

Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge certain actions of the Board of Education of the Bellmore Union Free School District ("respondent") related to its May and June 2005 budget votes. The appeal must be sustained in part.

On May 17, 2005, district voters defeated the proposed budget by a vote of 803 to 583. Respondent resubmitted the budget for a vote on June 20, 2005, at which time the voters approved the budget by a vote of 1,314 to 1,086. This appeal ensued.

Petitioners contend that respondent used public resources to encourage voters to vote in favor of the budget. Petitioners do not seek to overturn the vote, but ask that I order respondent to refrain from improper partisan activities and improper use of district funds in the future. Respondent contends that petitioners' claims regarding the May vote are untimely and that petitioners have failed to establish any impropriety regarding the June vote. Respondent also contends no case or controversy exists because petitioners do not seek to overturn the voting results and merely seek a declaratory ruling regarding future elections.

The appeal is untimely to the extent that petitioners challenge respondent's conduct in relation to the May 17, 2005 budget vote. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). Petitioners have neither challenged the results of the May election nor commenced this appeal within 30 days thereof. Accordingly, petitioners' claims regarding the May 17, 2005 vote and respondent's actions prior thereto are dismissed as untimely.

It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law �310 (Appeal of Taber, 42 Ed Dept Rep 251, Decision No. 14,843; Appeal of a Student with a Disability, 42 id. 111, Decision No. 14,791; Appeal of Hillhouse, 41 id. 385, Decision No. 14,720). I have recognized, however, that a petition goes beyond a mere request for an advisory opinion concerning the propriety of a district's actions and raises a justiciable claim where a petitioner requests that I order a board to cease partisan activity and improper use of funds in future elections (Appeal of Doro, 40 Ed Dept Rep 281, Decision No. 14,480; Appeal of Goldin, 39 id. 323, Decision No. 14,250). In this appeal, petitioners request that I order respondent to cease improper partisan activities, so I decline to dismiss the appeal on the grounds that it requests an advisory opinion.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

In this case, petitioners allege respondent's involvement in four improper activities. First, petitioners allege that children in respondent's schools were approached in classrooms and/or stopped at exit doors on the date of the June budget vote by district personnel, PTA members and other individuals who placed stickers on each child's chest which read "VOTE YES FOR US." Respondent denies this allegation, and the PTA co-presidents assert in their affidavits that the stickers were donated to the PTA by a local merchant, and that PTA members situated outside two district schools offered the PTA stickers only to children and parents who wanted them. Thus, petitioners have failed to meet their burden of proof with respect to this claim.

Second, petitioners allege that respondent scheduled a function at the sole polling place on June 20, 2005 to limit available parking and dissuade or prevent voters from voting. Respondent asserts that the program --"Summer Reading Kick-Off"-- was scheduled just prior to the summer break because its purpose was to encourage students to read during those months, and that the district carefully staggered the assigned class times throughout the day to avoid overcrowding. Petitioners have not submitted any affidavits from individuals who were dissuaded from voting due to insufficient parking nor have petitioners offered any other proof in support of this claim. Thus, this claim must be dismissed.

Petitioners remaining two allegations, however, raise issues of concern. Petitioners allege that respondent produced a newsletter in association with the Bellmore Elementary Parent Teachers Association ("PTA") which advocated for the budget and was sent home in student backpacks. Although respondent submitted the affidavits of the PTA co-presidents who assert that the newsletter is produced, published and funded solely by the PTA, and that the district exercises no control over its publication, respondent has not refuted petitioners' claim that this advocacy material was distributed at school.

Petitioners also allege that respondent provided mailing labels which were used to mail budget advocacy material. While petitioners have produced no evidence that the PTA used mailing labels provided by the district to advocate for the June vote, respondent acknowledges that the district provided the PTA with preprinted mailing labels at the beginning of the school year, at a minimal cost to the district, to disseminate information of interest to the school community and admits that the district has no control or knowledge of the PTA's use of those labels.

A board of education must be vigilant to ensure that district resources are not used, either directly or indirectly, to disseminate partisan information (Appeal of Coleman, 45 Ed Dept Rep ___, Decision No. 15,324) and must be accountable for how its resources (such as mailing labels) are being used (Appeal of Lawson, 38 Ed Dept Rep 713, Decision No. 14,124). I thus direct respondent to review its policies on elections and the use of district resources to ensure that adequate safeguards are in place to guard against improper partisan political activity.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent review its policies on elections to ensure that adequate safeguards are in place to protect against the improper use of district generated mailings labels and other district resources to advocate partisan political positions.

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