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Decision No. 16,473

Appeal of JASON C. TILLETT from actionof the Board of Education of the Penfield Central School District and Superintendent John D. Carlevatti regarding a budget vote and election.

Decision No. 16.473

(April 29, 2013)


Harter, Secrest & Emery LLP, attorneys for respondents, Ronald J. Mendrick and Meghan M. Lynch, Esqs., of counsel


KING, JR., Commissioner.--Petitioner appeals actionsof the Board of Education of the Penfield Central School District (“board”) and Superintendent John D. Carlevatti(collectively “respondents”) related to the May 15, 2012 annual district meeting and election. The appeal must bedismissed.

The day before the May 15, 2012 vote and election, 16district-owned signs were placed along various roads and intersections in the district: six signs were placed alongroads bordering district schools and ten were placed atintersections of major roads. The signs stated “VOTE MAY15 TUESDAY PENFIELD SR. HIGH 6AM-9PM.” The day before the2009, 2010 and 2011 votes and elections, similar signs werealso placed along various roads and intersections in thedistrict. In an appeal brought in May 2011, petitionerobjected to the same type of sign placed in the samelocations, announcing the May 17, 2011 budget vote. That appeal was dismissed in Appeal of Tillett, 51 Ed Dept Rep,Decision No. 16,327 (“Tillett I”).

Petitioner contends that the signs were placedpredominantly at schools and workplaces of district employees, were placed there less than 45 days before thevote in violation of Education Law §2004, and that suchsign placement constitutes discrimination and improperpartisan activity. He submits 16 affidavits from district residents who assert that they perceived the signplacements to be partisan activity.

As in Tillett I, petitioner seeks a determination thatrespondent violated Education Law §2004 and also that such sign placement creates a perception of impermissible partisanship. Here, petitioner also seeks a determinationthat the sign placement is discriminatory. Also as in Tillett I, he requests that I direct respondents to refrainfrom such activity in the future. He also requests that Ireprimand the superintendent and the board for engaging indiscriminatory activity.

Respondents assert that, with respect to petitioner’schallenge to the conduct of budget votes prior to 2011(which was dismissed in Tillett I), the appeal is untimely.Respondent also contends that petitioner’s claims are barred by the doctrine of res judicata, and that the appealmust be dismissed for failure to state a claim upon whichrelief may be granted. Respondents deny engaging in partisan activity and assert that they complied with thepublication requirements of Education Law §2004.Respondents contend that petitioner has not only failed toestablish that any improper conduct occurred, but also thatany alleged impropriety affected the outcome of the election. Finally, respondents allege that it is improperfor me to substitute my judgment as to which locations arebest suited for posting the signs.

An appeal to the Commissioner must be commenced within30 days from the making of the decision or the performanceof the act complained of, unless any delay is excused bythe Commissioner for good cause shown (8 NYCRR §275.16;Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914;Appeal of Williams, 48 id. 343, Decision No. 15,879). With respect to any claims arising from the 2009 and 2010 budgetvotes, the appeal is untimely.

To the extent petitioner seeks an advisory opinion anddeclaratory relief, the appeal must be dismissed for failure to state a claim upon which relief may be granted.It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appealpursuant to Education Law §310 (Appeal of a Student with aDisability, 48 Ed Dept Rep 411, Decision No. 15,899; Appealof Waechter, 48 id. 261, Decision No. 15,853).

With respect to petitioner’s request that I reprimandrespondents, such claims must also be dismissed. There is no provision in the Education Law authorizing censure orreprimand of a board member or district staff by theCommissioner of Education (Appeal of C.Z., 52 Ed Dept Rep, Decision No. 16,450; Appeal of Oglesby, 51 id. Decision No. 16,311).

Turning to the merits, Education Law §2004(1) requiresschool districts to publish notice of the time and place ofthe annual meeting four times within the seven weeks preceding the meeting. The first publication must be atleast 45 days before the meeting in two newspapers, ifthere are two, or in one newspaper, if there is one, havinggeneral circulation within the district. Section 2004(1)also requires that if no newspaper has general circulation,then the notice “shall be posted in at least twenty of themost public places in said district forty-five days beforethe time of such meeting.” Nothing in the law, however,prohibits the posting of signs in public places in additionto newspaper publication.

In an appeal to the Commissioner, a petitioner has theburden of demonstrating a clear legal right to the reliefrequested and the burden of establishing the facts uponwhich petitioner seeks relief (8 NYCRR §275.10; Appeal ofAversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal ofHansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48id. 348, Decision No. 15,882).

Respondents assert that they complied with the publication requirements of Education Law §2004(1).Accordingly, the district was not required to post signs inpublic places (Appeal of Bartosik, 37 Ed Dept Rep 541,Decision No. 13,922). Respondents admit, however, thatthey posted signs “voluntarily in order to provide noticeof the date, time, and location of the annual meeting andelection. The signs do not advocate a particular position,but inform qualified voters of the annual meeting andelection in order to enable their participation.”

While petitioner correctly asserts that, as a generalmatter, a board of education must avoid even the appearanceof impermissible partisan activity with respect to theconduct of an election (cf. Appeal of McBride, et al., 39Ed Dept Rep 703, Decision No. 14,354), and submits severalaffidavits from district residents stating that theyperceived the sign placements as partisan activity, I findthat no such appearance was created in this case. Rather,I agree with respondents that, as in Tillett I, the signsmerely encouraged district residents to vote and,therefore, were informational and did not advocate a partisan position (see Appeal of Carroll, Emerson and Murphy, 42 Ed Dept Rep 326, Decision No. 14,871). As in Tillett I, the record clearly demonstrates that the signswere located in public places, and the fact that some ofthose places were district property does not transform aneutral sign into a partisan one. Based on this record, Ifind that petitioner has failed to carry his burden ofestablishing that respondents improperly advocated or created a perception of a partisan position through thesigns’ content or placement.

Although the basis for petitioner’s “discrimination”claim is not clear, he appears to allege that respondentsintended to “enhance turnout of supporters of the budgetwith intent to NOT enhance the turnout of non-supporters”by “target[ing] special groups” such as district employeesand the parents of district students. Whether petitionercasts his claim as “targeting,” “discrimination” or partisan activity, he has failed to carry his burden ofproof. Petitioner has cited no legal basis to support hisdiscrimination claim and, as described above, he has failed to establish that respondents in any way improperlyadvocated or created a perception of a partisan positionthrough the signs’ content or placement.

Finally, I note that respondents argue that petitioner’s claims are barred by the doctrine of resjudicata based on the decision in Tillett I, which wasdismissed primarily on procedural grounds. In any event, Ineed not address that claim, or any of the parties’remaining contentions, in light of the above disposition.

THE APPEAL IS DISMISSED.

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