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Decision No. 16,753

Appeal of STEPHEN BARSE, on behalf of the COMMITTEE TO ELECT TAMMY FRANCIS, JON PONTIUS and DARRELL LAPAGE, from action of the Board of Education of the Salmon River Central School District relating to the use of school property.

Decision No. 16,753

(April 30, 2015)

Guercio & Guercio, LLP, attorneys for respondent, Erin M. O’Grady-Parent, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner challenges the action of the Board of Education of the Salmon River Central School District (“respondent”) permitting the St. Regis Mohawk Tribe to use district facilities.  The appeal must be dismissed.

Pursuant to its authority under Education Law §414(1)(c), respondent adopted a policy for the use of school facilities by outside groups when not in use for school purposes.  The policy states, in pertinent part:

It shall be the policy of the Board to encourage the greatest possible use of school facilities for community-wide activities.  This is meant to include use by recognized civic, social and fraternal and religious organizations in accordance with law.  Groups wishing to use the school facilities must obtain written permission from the Superintendent and abide by the rules and regulations established for use including restrictions on alcohol, tobacco and drug use. 

 On or about May 13, 2014, respondent’s superintendent received a “Request for the Use of District Facilities by Non-School Organizations” form (“form”) from the St. Regis Mohawk Tribe requesting the use of district facilities during the evening of May 14, 2014, to conduct a “Meet the Candidates Night.”  The record indicates that the purpose of the event was to provide “an opportunity for the district to meet the candidates running for the Board of Education election” to be held on May 20, 2014.  The form was signed by the Education Division Director (“Director”) as the representative of the St. Regis Mohawk Tribe.  Directly above the signature, it states “I have read the rules and conditions on the reverse side of this form and agree to supervise the activity in accordance with these rules.”  Such rules and conditions require, among other things, that applicants acknowledge and agree that they will:  “maintain an orderly behavior in the group and assembled public”; “conduct no activities for personal financial gain of any participant”; and “conduct no activities ... which are exclusive.”

The superintendent approved the request on May 14, 2014.  According to the record, the superintendent spoke to the Director prior to the event, who assured her that all seven candidates for office on the board would be invited to the event, it would be open to the public, all candidates would be given equal time to speak, and no endorsements of any particular candidate or partisan activity in support of any particular candidate would take place at the event. 

Approximately 23 members of the community attended the “Meet the Candidates Night” in the district’s auditorium, including members of the St. Regis Mohawk Tribe and non-tribal members of the community.  Members of the local press also attended.

Three candidates participated in the “Meet the Candidates” forum - Sheila Marshall, Michael Conners and Jason McDonald.  A moderator took questions concerning educational issues from community members and gave each candidate one minute to respond to each question.  Biographical information on the candidates who were present was also distributed.  Four candidates chose not to attend the forum - Robert Durant, Tammy Francis, Jon Pontius and Darrell LaPage.  It appears that each had been invited to attend and was asked to submit biographical information but declined to do so.  However, Mr. Durant did submit a response to one of the questions asked at the forum, which response was shared with the audience.

At the May 20, 2014 election, candidates Sheila Marshall and Michael Conners received the highest number of votes and were elected to five-year terms.  Candidate Jason McDonald received the third highest number of votes and was elected to fill the remainder of an unexpired term for one year.  This appeal ensued.

Petitioner challenges respondent’s actions permitting the use of school property for the “Meet the Candidates Night.”  Specifically, petitioner alleges that respondent’s approval for the use of district facilities for the event was illegal and partisan because the St. Regis Mohawk Tribe had previously endorsed three of the candidates for election to the board.  Petitioner claims that such use constitutes impermissible partisan activity by the board.  Petitioner seeks an order directing respondent to “cease partisan activity and improper use of faculties [sic] in future elections.”

Respondent maintains that the appeal must be dismissed because petitioner failed to meet his burden of establishing a clear right to the relief requested.  Respondent also contends that the appeal must be dismissed as untimely, as well as for improper service, lack of standing and failure to join necessary parties.  Respondent further asserts that the appeal impermissibly seeks an advisory opinion and is moot.  Finally, respondent maintains that petitioner has failed to prove any violation of the Education Law or Commissioner’s regulations.

I will first address several procedural matters.  The appeal must be dismissed for lack of standing.  Petitioner brings the appeal on behalf of the “Committee to Elect Tammy Francis, Jon Pontius and Darrell LaPage.” An unincorporated association lacks standing to maintain an appeal under Education Law §310 (Appeal of Torres, 46 Ed Dept Rep 301, Decision No. 15,515; Appeal of Russo, 46 id. 266, Decision No. 15,504).  Petitioner presents no evidence in the record that the Committee is incorporated.  As such, it may not maintain an appeal.  Moreover, an individual representative of an unincorporated association has no greater standing to maintain an appeal pursuant to Education Law §310 than the association itself (Appeal of Beilman, 38 Ed Dept Rep 644, Decision No. 14,109).

In addition, an individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  There is no indication in the record that petitioner is a district resident, seeks to bring the appeal on his own behalf or is otherwise aggrieved by respondent’s actions.  Thus, petitioner fails to allege or establish that he has individual standing to bring this appeal.  Accordingly, the appeal must be dismissed.

The appeal is also untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the 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).

 Commencement of an appeal is governed by §275.8(a) of the Regulations of the Commissioner of Education, which provides, in pertinent part:

A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers, ... shall be personally served upon each named respondent, ....  If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service....  Pleadings may be served by any person not a party to the appeal over the age of 18 years....

Petitioner is challenging respondent’s determination to allow the St. Regis Mohawk Tribe to use district facilities for its “Meet the Candidates Night” on May 14, 2014.  However, petitioner did not serve a notice of petition and verified petition on respondent until June 23, 2014 - outside the required 30-day period. 

Petitioner initially filed a petition with my Office of Counsel on June 16, 2014.  However, by letter dated June 17, 2014, my Office of Counsel returned the petition indicating that it did not include a notice of petition, was not verified and did not include proof of service upon respondent, as required by the Commissioner’s regulations.  Although petitioner re-filed a verified petition and notice of petition, the affidavit of service upon respondent indicates that service was made on January 23, 2015 – beyond the required time period.  Moreover, the affidavit of service identifies Michael Sisto as the person who served the district clerk.  Mr. Sisto is a member of respondent board.  Service of a petition on a board of education by a member of the board itself does not comply with §275.8(a) of the Commissioner’s regulations, which requires that pleadings be served by a person who is not a party to the appeal. Such defect in service warrants dismissal.

Moreover, petitioner’s proferred explanation regarding his alleged attempt to effectuate service prior to June 23, 2014 is not persuasive.  Among other things, petitioner claims that he “was unable to have ... Board ... President Christopher Nye served with the petition because he wasn’t able to receive [sic].”  However, attached to the petition is an affidavit from Mr. Nye, sworn to on June 13, 2014, which suggests that he was, indeed, available to accept service at least on that date.  In addition, petitioner asserts that he “had Board Trustee Michael Sisto served on Sunday, June 15, 2014 with the petition and ‘Notice’.”  However, nowhere in the record is there an affidavit of service on Mr. Sisto or anyone else prior to June 23, 2014.  As averred in the affidavit of the district clerk, it was Mr. Sisto who actually served the papers on her on June 23, 2014.  Based on the above procedural defects, the appeal must be dismissed.

 Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Although not entirely clear, petitioner appears to claim that, by allowing the St. Regis Mohawk Tribe to use district facilities for the “Meet the Candidates” event, the board engaged in impermissible partisan activity.  The record does not support such a conclusion.

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).

Education Law §414 provides that boards of education may permit the use of district grounds and other property when not in use for school business for certain specific purposes.  Those purposes include:  “... holding social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community; but such meetings, entertainment and uses shall be non-exclusive and shall be open to the general public”  (Education Law §414[1][c]).  As set forth above, respondent adopted a facilities’ use policy that provides, in part:

It shall be the policy of the Board to encourage the greatest possible use of school facilities for community-wide activities.  This is meant to include use by recognized civic, social and fraternal and religious organizations in accordance with law.

I find that the “Meet the Candidates” forum, the intent of which was to inform all voters, is within the permissible category of a “civic” meeting, as that term is used in Education Law §414(1)(c), and is consistent with respondent’s policy.  Petitioner has failed to demonstrate that the event was exclusive and not open to the public, in violation of Education Law §414(1)(c).  Moreover, there is no evidence that respondent permitted the use of district funds, property or resources for partisan activity.  It appears that the St. Regis Mohawk Tribe invited all candidates running for the board to attend the “Meet the Candidates Night” for the purpose of giving the public an opportunity to learn more about the board candidates.  The fact that some candidates elected not to attend was a matter of personal choice on the part of the individual candidates, not as the result of partisanship.  In addition, there is no evidence that endorsements of any individuals took place at the event, and candidates who attended were given equal time to respond to questions from community members concerning educational issues.

On this record, I find no violation of Education Law §414 or district policy, and there is no evidence that district funds, property or resources were impermissibly used to support and/or to advocate for any particular candidate.  Thus, petitioner’s claims are without merit.

THE APPEAL IS DISMISSED.

END OF FILE