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Decision No. 15,521

Appeals of RICHARD R. CASS, JR., GERALD J. FURNKRANZ, and SUSAN POET from actions of the Board of Education of the Horseheads Central School District regarding an election.

Decision No. 15,521

(February 2, 2007)

 

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

Petitioners, unsuccessful candidates for election to the Board of Education of the Horseheads Central School District (“respondent”), appeal the conduct of a school district election and other actions by respondent. Because the appeals raise common issues of law and fact, they are consolidated for decision. The appeals must be dismissed.

On May 16, 2006, respondent held its annual meeting and election to vote on its annual budget and fill three seats on the board. Petitioners Cass, Furnkranz and Poet (“Cass”, “Furnkranz” and “Poet”) were all candidates for the board. According to respondent, the budget passed by 85 votes and the vote tallies for the six board candidates immediately after the election were: David Searles (1,622); Lynn Eusden (1,580); Mark Brinthaupt (1,575); Poet (1,276); Furnkranz (993); and Cass (828).

Petitioners contend that two letters authored by the presidents of the Ridge Road and Center Street Parent Teacher Organizations (“PTOs”), respectively, endorsing the budget and candidates Searles, Eusden and Brinthuapt, were improperly sent home with students on May 11 and 12, 2006 and affected the election outcome. All three petitioners request that the election be overturned.

In his petition, Cass also alleges that teachers campaigned in class by telling students to have their parents vote “yes” on the budget or they would lose sports, music and kindergarten, and that the vote-counting procedure was disorganized. Furnkranz’s petition, consisting of 55 unnumbered and confusing paragraphs, claims that district resources may have been used to produce the PTO letters. In addition, both petitioners complain that respondent scheduled concerts at voting sites on election day and that its absentee ballots were sent out with an error in the proposed dollar amount in the bus purchase proposition. They also seek an investigation of respondent’s election procedures.

Poet further asserts that the PTO letters not only affected the results of the election but also violated board policy 1220.1-R. She seeks the removal of the winning candidates as members of respondent board. She also requests that the principals of the two schools be publicly disciplined for knowingly and willfully violating board policy and affecting the results of an election. She further alleges that on May 8, 2006, six board members knowingly and willfully ignored board policy 9640 regarding non-school employment by granting leaves of absence to certain school employees. She seeks the removal of incumbent members of respondent who violated that policy and requests that respondent issue a public apology for its failure to adhere to board policy. She also requests that respondent publicly apologize for its failure to properly conduct the election.

Respondent asserts that the appeals must be dismissed for failure to join the successful candidates as parties. To the extent Poet seeks removal of board members, respondent similarly maintains that her appeal must be dismissed for failure to join those board members. Respondent admits that the PTO letters violated board policy 1220.1-R but denies that they affected the outcome of the election or that the election results were improper. Moreover, respondent asserts that it has taken measures to prevent another such violation.

Respondent further denies the allegation that teachers have campaigned in school and maintains that petitioners failed to prove that any voter was dissuaded or prevented from voting by the concerts. Respondent also states that the alleged error on the absentee ballots was corrected and that they were remailed. Respondent asserts that all allegations relating to the 2004 and 2005 elections are untimely, and denies that district resources were used for any PTO publications. Respondent also asserts that the petitions of Cass and Furnkranz fail to comply with §275.10 of the Commissioner’s regulations in that they fail to contain clear and concise statements of their claims and fail to set forth claims for relief. In response to the request of these petitioners for an investigation, respondent asserts that the Commissioner lacks jurisdiction to order an investigation.

In response to Poet’s other claims, respondent denies that board policy 9640 applies to leaves of absence, asserts that leaves of absence for teachers are governed in the teachers’ contract and that its actions on May 8 were proper. Respondent also contends that the Commissioner lacks the authority to order a public apology.

I will first address several procedural issues. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Gehl, et al., 42 id. 287, Decision No. 14,857; Appeal of Johnson, 38 id. 524, Decision No. 14,086).

Both Cass and Furnkranz submitted additional papers as addenda to their respective petitions regarding the expenditure statements of the winning candidates. They assert that the statements erroneously indicate that no expenses were incurred and thus fail to reflect the expenses spent by the PTOS to endorse them. However, neither requested permission to belatedly submit this information and neither claimed that they could not obtain the material in time to include in their petitions. Accordingly, I have not considered this material.

Furnkranz also submitted an addendum to his reply to respondent’s answer, and five letters addressed to the Commissioner dated between September and November 2006. As discussed above, additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner, which was not requested (see 8 NYCRR §276.5). Accordingly, I have not considered this material.

The purpose of a reply is to respond to new material or affirmative defenses set forth 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 that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). All three petitioners submit additional information in their respective replies. Therefore, while I have reviewed the replies, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the respective answers.

To the extent petitioners seek to invalidate the election, the appeal must be dismissed for failure to join necessary parties. Parties whose rights would be adversely affected by a determination of an appeal in favor of petitioners are necessary parties and must be named as such and served with a notice of petition and petition (Appeal of Guibert, 44 Ed Dept Rep 385, Dec. No. 15,207; Appeal of Ewart, 44 id. 147, Decision No. 15,127; Appeal of Milazzo, 43 id. 294, Decision No. 14,999). If an appeal involves the validity of a school district meeting or election, the petition must be served upon each successful candidate whose right to hold office is disputed and such person must be joined as a respondent (8 NYCRR §275.8[d]; Appeal of Guibert, 44 Ed Dept Rep 385, Dec. No. 15,207).

Here, the three winning candidates were neither named as respondents nor personally served with a copy of the notice of petition or petition. Petitioners served either the district’s superintendent, the district clerk or respondent’s president on behalf of the board. Since a decision in petitioners’ favor would clearly affect the rights of the winning candidates, petitioners’ failure to individually name and serve them requires dismissal of the appeals. Similarly, to the extent Poet seeks removal of the incumbent board members, her failure to name or serve them also requires dismissal.

Even if they were not dismissed on procedural grounds, the appeals would be dismissed on the merits. To invalidate the results of a school district election, petitioners must establish not only that irregularities occurred, but also that any irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162), were so pervasive that they vitiated the electoral process (Appeal of Brannon, 42 Ed Dept Rep 220, Decision No. 14,830; Appeals of Laskas-Gillespie and Warshaw, 40 id. 568, Decision No. 14,559; Appeal of Roberts, 33 id. 601, Decision No. 13,162), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Christe, 40 Ed Dept Rep 412, Decision No. 14,514; Matter of Levine, 24 id. 172, Decision No. 11,356, affd sub nom; Capobianco v. Ambach, et al., 112 AD2d 640). Implicit in these decisions is the recognition that it is a rare case where errors in the conduct of an election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Collins, 39 Ed Dept Rep 226, Decision No. 14,223; Appeal of Roberts, 33 id. 601, Decision No. 13,162; Appeal of Como, et al., 28 id. 483, Decision No. 12,177).

In addition, petitioners have the burden of establishing all the facts upon which they seek relief (8 NYCRR §275.10; Appeal of Wierzchowski, 39 Ed Dept Rep 682, Decision No. 14,348). To warrant setting aside an election, petitioners must establish that the improprieties are substantial and not merely technical in nature (Appeal of Morris, et al., 37 Ed Dept Rep 590, Decision No. 13,936; Appeal of Taylor, 31 id. 46, Decision No. 12,564).

Although Searles, Eusden and Brinthaupt were the candidates endorsed by the PTOs, petitioners have failed to establish that any irregularities affected the outcome of the election, were so pervasive as to vitiate the electoral process, or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law. Petitioners failed to submit any voter affidavits indicating that the PTO letters influenced them to vote in favor of any particular candidate. There is no evidence that the candidates sought to run as a ‘block’ or had prior knowledge of the endorsement, and there is no evidence that the letters were targeted to certain parents. To the extent petitioners submitted newspaper articles as evidence, it is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Coleman, 45 Ed Dept Rep 282, Decision No. 15,324; Application of Gabryel, 44 id. 235, Decision No. 15,158; Application of Lilly, 43 id. 459, Decision No. 15,050). In effect, petitioners have provided nothing more than mere speculation which is insufficient to annul an election (see Appeal of McBride, et al., 39 Ed Dept Rep 702, Decision No. 14,354).

I must note, however, that respondent admits that the letter sent home with students at the Ridge Road School violated board policy 1220.1-R. Respondent also admits that during the weekend preceding the election, the district’s superintendent became aware that letters from both PTOs had been sent home with students. The next school day, the superintendent contacted the principals, notified them that this conduct violated board policy and Commissioner’s decisions and thereafter initiated an investigation that resulted in formal discipline.

Although the investigation revealed that the letters were prepared privately without any district resources, I remind respondent that 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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Appeal of Coleman, 45 id. 282, Decision No. 15,324) and must be accountable for how its resources are being used (Appeal of Lawson, 38 Ed Dept Rep 713, Decision No. 14,124). I commend respondent for its quick response to the violation in this case but urge it to review its policies and procedures to ensure that adequate safeguards are in place to guard against improper partisan political activity in the future.

I have considered petitioners’ remaining arguments and find them without merit.

In light of this disposition, I need not address respondent’s remaining procedural and jurisdictional defenses.

THE APPEALS ARE DISMISSED.

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