Appeal of JAMES D. HILLER from actions of the Board of Education of the Valley Central School District and Superintendent Richard Hooley regarding an election.

Decision No. 15,704

(December 21, 2007)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondents, Daniel Petigrow and Bryn Sarvis Pace, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals certain actions of the Board of Education of the Valley Central School District (“respondent board” or “board”) and Superintendent Richard Hooley (“superintendent”) regarding the conduct of an election.  The appeal must be sustained in part.

On May 15, 2007, respondent board conducted its annual election and budget vote.  The voting took place at the district’s five elementary schools.  The preceding day, teachers and staff at the district’s Walden Elementary School (“Walden”) distributed printed coupons to students to bring home for each voting parent or guardian to fill out and deposit in a “Coupons for Polling” bin near the polling booths when they voted.  Each redeemed coupon entitled the student to either half a homework pass or a free book, depending on the grade.  At Montgomery Elementary School (“Montgomery”), teachers verbally informed students prior to the election that parents could pick up a homework pass from a basket at the polls.

Of the 2,173 people who signed in to vote on May 15, 41 apparently did not vote on the budget, which passed by 660 votes.  The Walden principal reported that 200 coupons were returned.  The superintendent stated that approximately 34 coupons had been issued at Montgomery.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 18, 2007.

Petitioner contends that respondents intended to influence the outcome of the budget vote by targeting a certain group of voters who are more inclined to support the budget, because coupons and gifts were only offered to those voters whose children attended elementary school.  He maintains that parents were clearly targeted because at Walden, a PTA book sale and student art exhibit, held in the same room where the voting took place, were promoted only to parents.  He also alleges that the book sale and art show created a voting atmosphere rife with so many irregularities that it demonstrated a clear and convincing pattern of informality to the point of laxity in adherence to the Education Law.  He claims that those events, along with a poetry reading, greatly reduced parking availability, which also discouraged voting by certain portions of the electorate.

Petitioner asserts, and respondents concede, that the coupons were prepared and funded by the district during school hours using school supplies and equipment, and that there were no distance markers posted outside Walden as required by Education Law §2031-a.  Petitioner also alleges that his civil rights were damaged by respondents’ actions.  Although petitioner concedes it is difficult to demonstrate that these irregularities affected the outcome of the election, he requests that I issue an order: prohibiting any future rewards; directing respondents to cease any partisan activities and use of public funds/resources for rewards in future elections; prohibiting PTA or other special events within 100 feet of a polling place; and directing the posting of distance markers.

Respondents assert that the appeal is moot and that petitioner has failed to state a claim upon which relief can be granted.  They deny that there were any irregularities in the conduct of the election or that they intended to influence the budget vote, and they assert that the coupons were merely an attempt to increase voter participation.  Moreover, respondents assert that the superintendent has already apologized individually to the complaining parents and published a letter to the editor in which he assured district voters that coupons will not be used in the future.  In addition, respondents assert that although no electioneering took place, they will ensure that distance markers will be properly posted in the future.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  To the extent petitioner requests that, in the future, respondents post distance markers and refrain from issuing coupons, those portions of the appeal are moot because respondents have already agreed to do so.

Petitioner, however, further requests that I prohibit respondents from engaging in partisan activities in future elections.  Prior Commissioners’ decisions have made it clear that holding a fund raiser or a school function at the same time as an election does not constitute electioneering (Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Appeal of McBride, et al., 39 id. 702, Decision No. 14,354; Appeal of Santicola, 36 id. 416, Decision No. 13,765).  These types of activities are permissible, provided a district gives notice to all district residents, and not just to those district residents that the board believes will be supportive of the budget, especially parents of students (seee.g.Appeal of McBride, et al., 39 Ed Dept Rep 702, Decision No. 14,354).  Petitioner alleges, and respondents do not dispute, that the bake sale and art show at Walden were publicized only to Walden parents.  Respondents should ensure that any future events scheduled on election days are advertised to all district residents.

I further remind respondents 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), must be accountable for how its resources are being used (Appeal of Lawson, 38 Ed Dept Rep 713, Decision No. 14,124) and must avoid even the appearance of impermissible partisan activity (Appeal of Miller, 39 Ed Dept Rep 348, Decision 14,256).  I commend respondents for their quick response to the public disapproval of the coupons, but urge them to review their policies and procedures to ensure that adequate safeguards are in place to guard against any improper partisan political activity in the future.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that for events occurring on election days in the future, respondent board give notice to all district residents and not just to parents of students.

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