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Decision No. 16,772

Appeal of MARK O’BRIEN from actions of the Board of Education of the Monroe-Woodbury Central School District, board member Jennifer Trumper, board president Dr. Michael J. DiGeronimo, Superintendent Edward Mehrhof, Chief Information Officer Hugh Cauthers, Eleni Carter, Natalie Brooks and John Otero regarding an election, and application for the removal of board member Jennifer Trumper.

Decision No. 16,772

(June 17, 2015)

Thomas, Drohan, Waxman, Petigrow and Mayle, L.L.P., attorneys for respondents board of education, Jennifer Trumper, Dr. Michael J. DiGeronimo, Edward Mehrhof, and Hugh Cauthers, Daniel Petigrow, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals actions of the Board of Education of the Monroe-Woodbury Central School District (“respondent board”), Jennifer Trumper (“respondent Trumper”) and Dr. Michael G. DiGeronimo (“respondent DiGeronimo”), and certain school district employees regarding the conduct of the district’s May 15, 2012 school board election and seeks to overturn the results of such election.  Petitioner also seeks removal of respondent Trumper from the board.  The appeal must be dismissed and the application denied.

On May 15, 2012, the district held its annual election in which six candidates ran to fill three board vacancies.  John Otero, Natalie Brooks and Eleni Carter were elected to fill the three seats on the school board.

Petitioner, an unsuccessful candidate, alleges that respondents, other than Otero, Brooks, and Carter, engaged in conduct prior to the May 15, 2012 election that prejudiced the candidates, requiring a new vote.

Although not clearly set forth in the petition, it appears from the record that, on or about May 2, 2012, respondent Trumper sent a personal email to a number of individuals, stating that petitioner was aligned with a Hasidic community and its interests. Subsequent emails from the community were shared among or forwarded by various district residents, including some district employees, raising concerns about petitioner’s alleged connection with the “special interest group.”  On or about May 14, 2012, Superintendent Mehrhof (“respondent Mehrhof”) and Chief Information Officer Cauthers (“respondent Cauthers”) forwarded to a number of district employees an email received by respondent Mehrhof, signed “Citizens to Protect Monroe-Woodbury Public Education from Special Interest Groups” (“Citizens email”) with an attached flyer and asked whether anyone knew the source of the email or flyer. 

The annual election took place on May 15, 2012.  Respondent DiGeronimo was present for and served as chairperson of the election.  The results of the election were as follows, with the top three candidates – Otero, Brooks and Carter – winning seats on the board:

John Otero - 3,082 votes

Natalie Brooks – 2,969 votes

Eleni Carter – 2,873 votes

Mark O’Brien (petitioner) – 1,362 votes

Clara Munoz-Feliciano – 1,163 votes

Guilaine Leger-Vargas - 963 votes

This appeal ensued.

Although the petition lacks specificity, it appears that petitioner is generally claiming that the email correspondence and newspaper articles exchanged prior to the May 15, 2012 election may have amounted to slander, libel, and defamation and that their distribution constitutes impermissible partisan activity by district officials and employees.  Petitioner appears to allege, generally, that district resources were used improperly because most of the above referenced emails were sent during the school day.  Petitioner also alludes to “robocalling” of district voters in connection with the election.  Additionally, petitioner contends that respondent DiGeronimo’s presence at the polling site during the election and the counting of the ballots was prejudicial.  Petitioner seeks nullification of the election and also seeks Trumper’s removal for her involvement with the emails.

Respondents argue that the appeal must be dismissed for failure to set forth clear and concise facts showing petitioner to be entitled to the relief requested and for failure to state a claim.  Respondents deny that district officials or staff engaged in impermissible partisan activity or that district resources were used therefor, in connection with the May 15, 2012 election.  Respondents contend that petitioner failed to establish any irregularity occurred that affected the outcome of the election.  Respondents also assert that the application for respondent Trumper’s removal should be dismissed for failure to comply with the notice provisions required by §277.1 of the Commissioner’s regulations.  To the extent that petitioner raises claims based on libel, slander, defamation, and violations of the Freedom of Information Law (“FOIL”), respondents argue that the appeal should be dismissed for lack of subject matter jurisdiction.

I will first address several procedural issues.  Initially, I note that petitioner submits newspaper articles as exhibits to his petition.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Rockwell, 51 Ed Dept Rep, Decision No. 16,355; Appeal of Wachala, 49 id. 31, Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision No. 15,826; Application of Coleman, 45 id. 282, Decision No. 15,324).  Therefore, I have not considered such articles for the veracity of their content.

Next, 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.  In addition, to the extent that petitioner’s reply also addresses other appeals pending before me,[1] such submission is improper and those portions will not be considered herein.[2]

To the extent petitioner seeks removal of respondent Trumper, I take judicial notice that she is no longer a board member and, thus, that issue is academic.  Moreover, the application failed to comply with §277.1 of the Commissioner’s regulations in that it lacked the required notice of petition and did not secure jurisdiction over the intended respondent (Application of Wolpin, 52 Ed Dept Rep, Decision No. 16,489; Application of Kroniser, 52 id., Decision No. 16,469; Application of Carrion, 50 id., Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).  

Turning to the merits, 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, affd sub nom Capobianco 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).  

It is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Antaki and Mosman, 47 Ed Dept Rep 228, Decision No. 15,678; judgment granted dismissing petition, Antaki and Mosman v. Mills and Bd. of Educ., Pleasantville UFSD, Sup. Ct., Albany Co., [Platkin, J.], May 30, 2008, n.o.r.; Appeal of Marchesani, 44 id. 460, Decision No. 15,232).  Additionally, mere speculation as to the effect of alleged irregularities provides an insufficient basis on which to annul election results (Appeal of Crawford, et al., 47 Ed Dept Rep 413, Decision No. 15,739; Appeal of Kudlack, 45 id. 272, Decision No. 15,319). 

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). 

On this record, petitioner has failed to establish that an irregularity occurred or that the outcome of the election was affected by the alleged actions of respondents.  As noted above, petitioner has the burden of establishing the facts entitling him to the relief sought.  The petition before me contains numerous conclusory allegations and statements of law.  However, it fails to set forth with specificity any allegations of wrongdoing by any specific respondent.  Even offering wide latitude to petitioner, appearing pro se, he has failed to carry his burden of proof.

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).  Even indirect support, such as a school board giving a PTA access to its established channels of communication to parents to espouse a partisan position that the board itself was prohibited from doing directly, has been deemed improper (Stern, et al. v. Kramarsky, et al., 84 Misc 2d 447; Appeal of Wallace, 46 Ed Dept Rep 347, Decision No. 15,529; Appeal of Hager and Scheuerman, 43 id. 363, Decision No. 15,019).

To the extent that petitioner claims that respondent Trumper sent improper emails in an attempt to influence district voters, such claim is without merit.  The attached emails from respondent Trumper indicate that they were sent from her personal email account and do not indicate that she was representing the board of education.  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).

Petitioner also failed to establish that respondents Mehrhof and Cauthers’ forwarding of the Citzens email to certain district employees on May 14, 2012 constitutes impermissible exhortation of voters.  Respondents Mehrhof and Cauthers’ aver that the purpose of sending the email was only to inquire whether anyone knew the author of the Citizens email, as part of an investigation by the district.  Petitioner does not challenge the propriety of such investigation, and I cannot conclude that respondents’ actions constituted impermissible partisan activity. 

Finally, petitioner implies that district officials were involved in permitting a “robocall” of families regarding the election.  Other than one unclear, general allegation in the petition, there is no further explanation or specific facts stated regarding this matter.  Respondents deny petitioner’s allegation and submit affidavits in support of their position.  As noted above, petitioner may not, in his reply, buttress allegations in the petition or belatedly add assertions or exhibits that should have been in his petition.  On this record, I find that, to the extent petitioner intends to claim that district resources were used in connection with a “robocall,” he has failed to meet his burden.

Petitioner also contends the election results must be overturned because respondent DiGeronimo, then member and president of respondent board, was the election chairperson and was present for the tallying of the ballots.  Petitioner states that “it appears” candidates’ rights were prejudiced.  Education Law §2025(2) authorizes a board of education to appoint a qualified voter of the district as chairperson and contains no restriction barring a board member from that position (Appeal of Bentley, 51 Ed Dept Rep, Decision No. 16,356; Appeal of Eagelfeld, 33 id. 256, Decision No. 13,042; cf. Appeal of Caswell, 48 id. 472, Decision No. 15,920 [Education Law §2025 contains no restriction barring a board member from serving as an election inspector]).  As such, the mere presence of respondent DiGeronimo serving as the chairperson of the annual election is not sufficient to invalidate the results of the election.

Moreover, in the May 15, 2012 election petitioner obtained 1,362 votes, 1,511 fewer that would have been required to surpass the third highest candidate’s votes and secure one of the three vacancies on the board.  Petitioner submits no affidavit from any voter demonstrating that the alleged irregularities affected his or her vote in the election.  Petitioner has, therefore, not established that any irregularity occurred that affected the outcome of the May 15, 2012 election. 

To the extent that petitioner raises claims that do not arise under the Education Law, such as defamation and slander, I lack jurisdiction over such claims and, therefore, need not address them (Appeal of P.S., 49 Ed Dept Rep 61, Decision No. 15,958; Appeal of Federico, 35 id. 269, Decision No. 13,538).

Finally, to the extent that petitioner raises claims pursuant to FOIL, §89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

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

THE APPEAL IS DISMISSED AND THE APPLICATION DENIED.

END OF FILE

 

[1] Appeal of Leger-Vargas 54 Ed Dept Rep, Decision No. 16,771; Appeal of Munoz-Feliciano 54 id., Decision No. 16,773; Appeal of Budich and MacDonald 54 id. Decision No. 16,774.

 

[2] In view of this determination, I need not consider the additional affidavit submitted by respondents.