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Decision No. 16,360

Appeal of SALLY SOTIROVICH from action of the Board of Education of the North Shore Central School District regarding the conduct of a school district meeting.

Decision No. 16,360

(June 12, 2012)

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

KING, JR., Commissioner.--Petitioner appeals actions of the Board of Education of the North Shore Central School District (“respondent”) related to the May 17, 2011 annual district meeting.  The appeal must be dismissed.

Petitioner claims that respondent engaged in actions designed to improperly exhort the electorate to approve the proposed 2011-2012 budget. Specifically, petitioner asserts that flyers containing inappropriate information were posted on the doors to the entrance of the polling place and were also placed inside the polling place to influence people to vote in favor of the budget.  Petitioner asks for a determination that the 2011-2012 budget vote violated election laws and that a new vote be held.

Respondent argues that petitioner failed to meet her burden of proof and that the appeal must be dismissed in its entirety.  Respondent contends that the information on the flyers is merely factual and informational in nature and does not advocate a partisan position. Respondent asserts that it did not violate the electioneering prohibition contained in Education Law §2031-a.   

I must first address the scope of the reply submitted by petitioner.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, 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 answer.

A board of education may use public resources to present objective, factual information to the voters concerning a vote or election (Education Law §1716; Phillips v. Maurer, et al., 67 NY2d 672; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  However, while a board of education may disseminate information “reasonably necessary” to educate and inform voters, its 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, et al., 67 NY2d 672; Stern, et al. v. Kramarsky, et al., 84 Misc 2d 447; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Wallace, 46 id. 347, Decision No. 15,529).

In this case, the flyer contained the following language:

2011-12 Proposed Budget, the smallest budget-to-budget percentage increase in 19 years!

  • Initially, the Superintendent removed $2 million.  Trustees cut an additional $1.4 million during the budget process.
  • The 2011-12 Proposed Budget is $88,861,064, up 2.78% from last year.
  • If the budget passes, we will be able to maintain current class sizes, electives, and extracurricular activities at our schools.

After careful consideration of the information presented in the flyer, I find that it is factual in nature and does not specifically exhort the voters to vote yes on the budget.  While I do not find that the flyer was technically partisan, it is perilously close and I encourage respondent to use caution in the future to ensure that such flyers are strictly objective and factual and, therefore, less likely to cause confusion and/or invite criticism (seeAppeal of Moessinger, 33 Ed Dept Rep 487, Decision No. 13,123; Appeal of Brower, 33 id. 368, Decision No. 13,081).   

In addition, to invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also a probability 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905), were so pervasive that they vitiated the electoral process (Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Georges, 45 id. 453, Decision No. 15,380), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, affdsubnomCapobianco 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 Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748; Appeal of Georges, 45 id. 453, Decision No. 15,380).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Respondent’s 2011-2012 budget passed by a margin of 992 votes.  Petitioner presents no evidence that any actions by respondent affected the outcome of the vote or that the alleged irregularities were so pervasive that they vitiated the electoral process or demonstrate a clear and convincing picture of informality to the point of laxity.  Petitioner does not provide any affidavits from voters who allege that they would have voted differently but for the alleged misrepresentation, irregularities or exhortation.  Mere speculation as to the effect of alleged misrepresentations, irregularities or exhortation is insufficient to annul election results (Appeal of Crawford et.al., 47 Ed Dept Rep 413, Decision No. 15,739; Appeal of Gorman, 44 id. 435, Decision No. 15,222).  Accordingly, I am constrained to dismiss the appeal.

In light of this disposition, I need not address the parties’ remaining contentions. 

THE APPEAL IS DISMISSED.

END OF FILE.