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Decision No. 16,373

Appeal of THOMAS A. KOEHLER from action of the Board of Education of the Fairport Central School District and the Board of Trustees of the Fairport Public Library regarding the use of district funds and electioneering.

Decision No. 16,373

(July 20, 2012)

Wayne A. Vander Byl, Esq., attorney for respondent Board of Education of the Fairport Central School District

Nixon Peabody LLP, attorneys for respondent Board of Trustees of the Fairport Public Library, Jeffrey G. Wright, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals actions of the Board of Education of the Fairport Central School District (“respondent board” or “board”) and the Board of Trustees of the Fairport Public Library (“respondent trustees” or “library trustees”) (collectively “respondents”) regarding the alleged improper use of district funds prior to a vote on a proposition.  The appeal must be dismissed.

The Fairport Public Library (“library”) is a school district library (see Education Law §255).  On October 14, 2010, the trustees approved a resolution directing the board, pursuant to Education Law §260(10), to call a special district meeting proposing a library relocation project and funding for such project.  On October 20, 2010, the board approved a resolution to call the special district meeting for December 16, 2010 to vote on the library project in the form of a proposition.  Proposition 1 (“the proposition”) authorized the board to acquire land, to renovate an existing building on the site, to make improvements, to relocate and expand the library, to incur no more than $16,349,116 in expenses, and to levy a tax for up to that amount.  The voters failed to approve the proposition by a vote of 3,185 to 2,260.

Petitioner alleges that the library trustees used public resources of both the district and the library to improperly advocate in favor of the proposition.  Petitioner requests that I admonish the board and library trustees for improperly using public resources for partisan activities and order them to refrain from doing so in the future.  He further requests that I order respondents to review their policies to ensure strict compliance with State and federal law.  Respondents deny that any public resources or funds of the district or library were used to advocate in favor of the proposition.

I must first address several procedural issues.  Although respondents do not raise this issue, I note that when a petitioner alleges that a respondent has violated the law by expending funds to advocate a partisan position regarding an election but does not seek to have the results of the vote set aside, he is, in effect, merely seeking an advisory opinion concerning the propriety of respondent’s actions.  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 a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

Commissioner’s decisions 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 an order requiring a board to cease partisan activity and improper use of funds in future elections (Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Appeal of Doro, 40 id. 281, Decision No. 14,480).  In this appeal, petitioner requests that I order respondents to cease improper partisan activities, so I decline to dismiss the appeal on the grounds that it requests an advisory opinion.

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 (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).

On March 1, 2011, petitioner submitted a verified application seeking to submit five additional exhibits that he claims relate to his appeal:  two requests under the Freedom of Information Law (“FOIL”), two bank statements and minutes from a library trustee meeting.  Petitioner alleges that the bank statements, received as a result of a FOIL request, are relevant to his appeal because they reveal a transfer of public library - not private – funds.  He alleges that this transfer refutes a statement by the president of the library trustees in an affidavit attached to respondent trustees’ answer regarding the use of public funds.  Respondent trustees object to the submission.

The allegations in the petition concern improper use of public funds to advocate for passage of the proposition through the use of an improper link on the library website, posters and an editorial.  The documents in petitioner’s March 1, 2011 submission attempt to advance a new and unrelated claim against respondent trustees relating to a transfer of funds.  Accordingly, I decline to accept this submission.

Respondent trustees object to petitioner’s memorandum of law as being styled as a reply memorandum and request that it be disregarded.  A liberal interpretation of the Commissioner’s regulations is appropriate where the petitioner is prose and there is no prejudice to respondent (Appeal of Khan, 51 Ed Dept Rep, Decision No. 16,287; Appeal of Metze, 42 id. 40, Decision No. 14,768; Appeal of Smith, 40 id. 172, Decision No. 14,452).  Accordingly, I have accepted petitioner’s memorandum to the extent it does not add belated assertions or exhibits that are not part of the pleadings.

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).

The principles articulated in Phillips v. Maurer, et al. derive from the constitutional gift prohibition in Article VII, §8 and Article VIII, §1 of the New York Constitution (seee.g.Schulz, et al. v. State of New York, et al., 86 NY2d 225; Schulz v. McCall, 235 AD2d 944).  While a public library, including a school district library, is considered a separate and independent entity for many purposes (seee.g. 1982 Opns St Comp 82-37; 2001 Opns St Comp 2001-12), the State Comptroller has determined that public library moneys may be expended only for a proper library purpose (seee.g. 1985 Opns St Comp 85-40; 1990 Opns St Comp 90-63).  In that sense, such libraries are indistinguishable from boards of education with respect to the appropriate use of public funds.  Therefore, I find that public libraries, in particular, school district libraries, are subject to Article VIII, §1 of the New York Constitution, and that the principles of Phillips v. Maurer, et al. apply equally to such entities.

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 board acknowledges that it levies a tax on the district’s taxable properties for the support of the library, but asserts that it has no legal authority to oversee or direct how the library trustees use the funds once they receive them (see Education Law §255).  Moreover, the district’s superintendent avers that the board complied with its obligation pursuant to Education Law §260 by calling a special district meeting, but that it expended no district funds or resources on the library’s behalf or to advocate in favor of the proposition, except for those incurred by the district clerk in performing the “necessary and customary duties administering the special district meeting . . .” for which the library trustees agreed to reimburse the district.  Petitioner presents no evidence to the contrary.  Accordingly, he fails to meet his burden of proof with regard to any alleged improper expenditure of district funds by respondent board.

Petitioner alleges that the library trustees improperly used public resources to advocate a “yes” vote on the proposition in three situations: the library website, posters and an editorial.  I will address each individually.  Petitioner first asserts that the home page of the library’s website improperly contained a link to “www.therelocatedfairportlibrary.org,” which in turn contained a link to a partisan web page with a petition entitled “I Support the Library’s Relocation Project.”

In her affidavit, the president of the library trustees (“president”) acknowledges that the respondent trustees were aware of the prohibition against the use of public resources for partisan activities.  She avers that, for that reason, the Fairport Library Foundation, Inc. (the “Foundation”), formed on August 7, 2008 under New York’s Not-for-Profit Corporation Law to support library activities, offered to conduct activities in support of the library relocation project.  The president states that the library’s home website is paid for and maintained with public funds, but that the Foundation established and paid for, with private contributions, a separate website regarding the project.  She avers that no public funds were used to develop or maintain that website.

Petitioner produces no evidence to contradict the president’s affirmations or to establish that the library website affirmatively directed visitors to the Foundation’s link.  In a similar Commissioner’s decision, it was held that “the mere presence of the link” on a district site was not an improper use of district communication channels (seeAppeal of Hager and Scheuerman, 43 Ed Dept Rep 363, Decision No. 15,019).  Likewise, I find that petitioner has failed to meet his burden of proving that any public funds were improperly expended merely by the presence of a link on the library’s home page.  However, as was noted in Appeal of Hager and Scheuerman, “if respondents have not already done so, I urge them to consider placing a disclaimer on the [] website to clarify that the [library] is not responsible for facts or opinions contained on any linked sites” (Appeal of Hager and Scheuerman, 43 Ed Dept Rep 363, Decision No. 15,019).

Petitioner next alleges that the library trustees improperly advocated for the proposition by asking 12 merchants to publicly display posters in support of the proposition.  The posters clearly advocate in favor of the proposition - they state “VOTE YES” in red capital letters.  The president, however, avers that the posters, or fliers, were created and paid for by the Foundation, not the library.  She also states that while library trustees, among other volunteers, distributed those posters or fliers to merchants, they did so in their individual capacities.  Although the record lacks affidavits from the other four library trustees attesting that they approached merchants in their individual capacities, petitioner presents no evidence to the contrary.  However, to avoid any appearance of impropriety, respondent trustees should, in the future, clarify their individual status during such activities.

Finally, petitioner alleges that the library trustees improperly advocated in favor of the proposition by publishing a signed editorial in the newspaper.  The editorial was entitled: “Now is the time for the Fairport Library” (emphasis in original) and included such language as “[w]e believe the time is now to secure the library’s future in our community.  Please vote ‘yes’. . .”  The editorial was signed by all five library trustees.  Under their names were the lines “Board of Trustees, Fairport Library.”

While it is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election, individual board members are entitled to express their views about issues concerning the district and engage in partisan activity, provided school district funds are not used (Application of Vogel, 46 Ed Dept Rep 481, Decision No. 15,570; Appeal of Wallace, 46 id. 347, Decision No. 15,529).

In the instant case, the president avers that “[t]he article was written by the Board members [trustees] in their individual capacities as volunteers and voters in the School District.  No public funds were used to write or publish the article.  No Library employees or resources were used to write or prepare the article.”  Petitioner has provided no evidence that public funds or resources were used, and, therefore, has failed to meet his burden of proof on this issue.

However, the editorial as written is clearly partisan and meant to persuade voters to vote in favor of the proposition.  Furthermore, the repeated use of the plural “we” and group signature would lead a reasonable voter to conclude that the views presented were those of the library board of trustees rather than the personal views of individual trustees.  I note that none of the trustees provided an affidavit attesting that the editorial was an expression of a personal opinion; indeed, while the president provided an affidavit, she does not aver that she was expressing a personal opinion.  As noted in Appeal of Johnson (45 Ed Dept Rep 469, Decision No. 15,384), “[w]hile board members have the right to express their individual opinions as long as no district resources are used, they would be very well served to avoid confusion and any hint of impropriety in future publications by clearly distinguishing their personal views from those of the board they represent.”  I admonish the library trustees to avoid any appearance of impropriety in the future by making such a distinction between their personal opinions and those of the library board.

THE APPEAL IS DISMISSED.

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