Appeal of CLARA MUNOZ-FELICIANO 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, Natalie Brooks, Eleni K. Carter and John Otero regarding an election, and application for the removal of Superintendent Edward Mehrhof, board member Jennifer Trumper and board president Dr. Michael J. DiGeronimo.

Decision No. 16,773

(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 J. 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 respondents Trumper and DiGeronimo from the board and Edward Mehrhof (“respondent Mehrhof”) as superintendent.  Additionally, petitioner seeks the imposition of a fine upon district officials and employees.  Petitioner further seeks a written apology and that I issue a warning to district staff regarding the “consequences of violating New York State school policies.”  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, complains that respondents engaged in conduct prior to the May 15, 2012 election that interfered with her campaign and the election.

On April 16, 2012, petitioner submitted a nominating petition to run for election to respondent board.  On or about May 2, 2012, petitioner received a copy of an email sent by respondent Trumper (“Trumper email”) to a number of individuals indicating that petitioner was aligned with a Hasidic community and, if elected, would be “sympathetic to their cause.”  The email implied that petitioner’s nominating petition was signed mostly by individuals from that community.  The email was shared among or forwarded by various district residents. Petitioner attended respondent board’s May 2, 2012 meeting and lodged a complaint about the email. 

On or about May 5, 2012, a district resident sent an email and flyer in support of Otero, Brooks and Carter to a district employee who, apparently, shared it from her personal email account with some district staff.  On or about May 9, 2012, petitioner received a copy of another email by respondent Trumper questioning the impartiality of another board candidate.

On or about May 14, 2012, respondent Mehrhof and Chief Information Officer Hugh 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 bearing the district’s logo, and asked whether anyone knew the source of the email or flyer. 

The election took place on May 15, 2012.  Respondent DiGeronimo was present for and served as the chairperson of the election.  That same day, petitioner apparently received an email sharing “a photo of a Hasidic man at the elections.”

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 – 1,362 votes

Clara Munoz-Feliciano (petitioner) – 1,163 votes

Guilaine Leger-Vargas - 963 votes

This appeal ensued.

Petitioner asserts that she ran for a seat on the board as an independent candidate and was not aligned with any special interest group.  She alleges that the actions of all respondents – except Otero, Brooks and Carter - taken in connection with the email correspondence prior to the May 15, 2012 election amounted to slander, libel, defamation, intimidation, anti-Semitism, bigotry and cyberbullying.  Petitioner further claims that, by forwarding the May 14, 2012 email correspondence, respondents Mehrhof and Cauthers improperly used school district resources to influence the outcome of the election.  Petitioner also asserts that “it is my understanding that” the district’s parental notification system was accessed for the purpose of issuing a political “robocall” on behalf of respondents Brooks, Carter, and Otero.  Finally, petitioner contends that respondent DiGeronimo’s presence at the polling site during the election and the counting of the ballots was improper.  She seeks nullification of the election results.

Petitioner also asserts that, based on the above-described actions, respondents Mehrhof, Trumper, and DiGeronimo should be removed from office and that respondents Mehrhof and Trumper should be fined. Lastly, petitioner seeks a written public apology from respondents.

Respondents generally deny petitioner’s claims, except to agree that she was a candidate in the May 15, 2012 election and that the above-described email correspondence occurred.  Respondents contend that, to the extent that respondents Mehrhof and Cauthers shared any email, such action was solely and properly for investigation purposes.  Respondents argue that respondent DiGeronimo’s presence at the annual election was appropriate.  Respondents contend that petitioner failed to demonstrate that any irregularities occurred or affected the outcome of the election.

With respect to petitioner’s application for removal, respondents Mehrhof and Trumper assert that the application should be dismissed for failure to comply with the notice provisions required by §277.1 of the Commissioner’s regulations.  Respondents further contend that petitioner failed to establish a basis for the removal of respondents Mehrhof, Trumper, and DiGeronimo.

To the extent that petitioner asserts claims of slander and defamation, seeks an apology, or requests imposition of a fine against or termination of district employees, respondents argue that the appeal should be dismissed for lack of subject matter jurisdiction.  Respondents also assert that the petition should be dismissed for failure to state a claim.

I will first address several procedural issues.  As an initial matter, I note that petitioner submits newspaper articles as exhibits to her 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.

Petitioner also objects to my consideration of affidavits by Otero, Carter and Brooks because they were submitted by respondents board, board members and district employees in support of their answer.  Petitioner contends that, because Otero, Carter and Brooks did not submit their own answer,[1] their affidavits should not be accepted.  However, the above-noted respondents are entitled to submit affidavits in support of their answer, and such affidavits have been considered (8NYCRR §275.13).

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 responds to other appeals pending before me[2] such submission is improper and those portions will not be considered herein.  However, with the exception of affidavits submitted with petitioner’s reply from residents who received “robocalls” (Petitioner’s Reply, Exhibit B), that should have been submitted with the petition, I have considered the parties’ submissions on the “robocall” issue.

Also, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  I note that respondents’ memorandum of law raises for the first time a claim of defect in personal service with respect to respondent DiGeronimo.  As noted above, a memorandum of law may not be used to add belated assertions that are not part of the pleadings. Therefore, respondent DiGeronimo’s assertions regarding service of the petition cannot be considered.  Failure to include such claim in his answer constitutes a waiver of that defense.

To the extent that petitioner seeks removal of respondents Mehrhof, Trumper, and DiGeronimo, I take judicial notice that respondents Trumper and DiGeronimo are no longer board members, nor is Mehrhof the superintendent, and the matter is, thus, academic.  Moreover, the removal application fails to comply with §277.1 of the Commissioner’s regulations in that it lacks the required notice of petition and, thus, did not secure jurisdiction over the intended respondents (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).  

Next, to the extent that petitioner seeks the imposition of a fine upon district employees and that a general warning be issued to district staff, there is no provision in the Education Law authorizing a reprimand or fine of a board member or district staff by the Commissioner of Education (Appeal of Tillett, 52 Ed Dept Rep, Decision No. 16,473; Appeal of C.Z., 52 id., Decision No. 16,450; Appeal of Oglesby, 51 id., Decision No. 16,311; Appeal of Boni, 41 id. 214, Decision No. 14,666).  Furthermore, I have previously held that the board of education has the sole authority and responsibility to determine if disciplinary action against a district employee is warranted, not the Commissioner (Appeal of Lloyd, 39 Ed Dept Rep 537, Decision No. 14,303; Appeal of Basil, 37 id. 568, Decision No. 13,929).  Therefore, I lack jurisdiction with respect to those matters.

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 not established that an irregularity occurred or that the outcome of the election was affected by the alleged actions of respondents.

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).  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 (Appeal of Wallace, 46 Ed Dept Rep 347, Decision No. 15,529; Appeal of Hager and Scheuerman, 43 id. 363, Decision No. 15,019).  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 Trumper’s May emails constitutes improper use of district resources to exhort district voters, such claim is without merit.  The emails were sent from Trumper’s 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 has not established that respondents Mehrhof and Cauthers’ forwarding of the Citizens email to certain district employees on May 14, 2012 constitutes improper exhortation of voters.  Respondents Mehrhof and Cauthers’ aver that the purpose of sending the email was only to inquire, as part of their investigation, whether anyone knew the author of the Citizens email.  Although petitioner asserts that she “believes” that an outside independent organization should have been hired to conduct the investigation, there is no requirement that respondent board have done so.  Moreover, I cannot conclude that those respondents’ actions constituted impermissible partisan activity.

Similarly, although petitioner complains of emails sent by district employees and the transmittal of a picture of a Hasidic man at the polls, the record indicates that the emails were sent by individuals from their personal email accounts.  Petitioner also complains that a flyer with the district’s logo, alleging petitioner’s alignment with Hasidic community interests, was distributed at the district’s bus garage.  Respondents deny petitioner’s allegation.  Petitioner offers no proof or otherwise establishes that any respondent was responsible for such flyer or its distribution.  Thus, she fails to carry her burden.

Petitioner also asserts that a “robocall” in support of Otero, Brooks and Carter was made from a district school and that they impermissibly used the district’s parent notification system.  Respondents deny the allegation.  I have considered both parties’ several affidavits and exhibits on this issue. 

Respondents Carter and Brook deny using district resources for the “robocall” and assert that they hired a private company to make it.  Carter submits an affidavit and invoice with proof of payment to an outside company for the “robocall” and states that she did not obtain telephone numbers through the district.  Although petitioner submits information regarding the company’s corporate status in New Jersey, such is not dispositive; petitioner fails to submit any proof that Carter did not use such company or that Carter, in fact, used district resources for the “robocall”.  Moreover, district staff submit affidavits stating that they alone held password access to the district’s parent notification system, and that the system was not used for the calls.  I note that the validity of a CD purportedly made of the incoming “robocall” is disputed by the parties and, on this record, I cannot conclude that it proves the “robocall” involved district resources.  Although petitioner poses a number of questions in her petition and reply, she fails to carry her burden of proof to establish that the district’s parent notification system, or any other district resources, was used for the “robocalls.”  Moreover, there is no evidence that respondents board or staff authorized or were aware of such activity.  On this record, petitioner fails to meet her burden.

Petitioner also challenges the election results because respondent DiGeronimo, then member and president of respondent board, was appointed chairperson of the election, and was present for the election and the tallying of the ballots.   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, petitioner’s conclusory statement that respondent DiGeronimo intimidated voters is also without merit.

Finally, petitioner contends that the ballots were counted “behind closed doors” and “should have been witnessed by voters and new candidates.”  Respondents deny petitioner’s allegations and provide an affidavit by DiGeronimo stating that the ballots were counted in the presence of several others, and that petitioner did not ask, nor was excluded, from witnessing the tally.  Petitioner submits no further allegation or proof to the contrary.  Thus, I cannot conclude that an irregularity occurred in connection with the vote tally.  On this record, petitioner has failed to prove that any irregularity occurred in connection with the May 15, 2012 election.

Moreover, at the election, petitioner obtained 1,163 votes, 1,710 fewer than 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 district voter demonstrating that the alleged actions of respondents influenced his or her vote in the election.  Petitioner, therefore, has not established that any irregularity occurred that affected the outcome of the May 15, 2012 vote.

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).

To the extent that petitioner seeks an apology, the Commissioner lacks the authority to order the board of education or any school district employee to issue an apology (Application of McDougall, 42 Ed Dept Rep, Decision No. 14,819; Appeal of Philips, 41 id. 10, Decision No. 14,595; Appeal of Lloyd, 39 id. 537, Decision No. 14,303).

Finally, to the extent that petitioner raises claims pursuant to FOIL, petitioner acknowledges that §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.

Although I am constrained to dismiss the appeal for the reasons set forth above, I urge respondent board to ensure that district officials and staff are mindful to avoid even an appearance of impropriety in their actions, so as to avoid unnecessary contention surrounding the conduct of district affairs.

THE APPEAL IS DISMISSED AND THE APPLICATION DENIED.

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