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Decision No. 17,225

Appeal of KATHY L. SIDMORE from action of the Board of Education of the Belleville Henderson Central School District Members John W. Allen, David P. Bartlett, Roger E. Eastman, Kurt E. Gehrke, Laurie M. Goodwin, Adam J. Miner, Gary M. Ramsdell and Superintendent Rick T. Moore regarding a school board election.

Decision No. 17,225

(October 23, 2017)

Office of Inter-Municipal Legal Services, attorneys for respondents, Sean R. Sterling, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the practice of the Board of Education of the Belleville Henderson Central School District (“board”) members - John W. Allen, David P. Bartlett, Roger E. Eastman, Kurt E. Gehrke, Laurie M. Goodwin, Adam J. Miner, and Gary M. Ramsdell - and Superintendent Rick T. Moore (collectively “respondents”) “to hold events [on] the same date as the annual meeting/election.”  The appeal must be dismissed.

On May 16, 2017, the board held its “Annual Budget and Election” followed by a regular board meeting.  The National Honor Society 33rd Annual Academic Achievement Dinner and National Junior Honor Society Induction (“the event”) was held the same day.  Petitioner also alleges “for historical purposes” that at a vote on a capital project held on February 11, 2015, respondents improperly sent a flyer to parents inviting them to attend a “Cabin Fever Reliever” during the vote.

Petitioner asserts that by holding the annual budget and election on the same day as the event, respondent board sought to increase “participation of a ‘targeted’ group of voters.”  Petitioner does not seek to overturn “the results of the vote held on May 16, 2017 or any previous elections.”  Instead, petitioner requests that I direct the board to “discontinue holding events during which residents are asked to vote on budget, board member, capital projects ... or any other type of vote which must be presented to the residents of the school district.” 

Respondents generally deny that they improperly targeted a specific group of voters and argue that the appeal be dismissed as moot, for improper service, failure to join necessary parties, and as untimely.  Respondents further argue that petitioner has failed to state a claim upon which relief can be granted and is merely seeking a declaratory ruling.  Respondents also object to petitioner’s “accusatory, scandalous, and irrelevant assertions of opinion about the [d]istrict generally, and the [s]uperintendent of [s]chools specifically” and requests that those assertions be struck from the record.  Finally, in their answer, respondents indicate that events taking place during the time in which any type of public vote is being held will be posted on the school’s webpage, as well as in the newsletter that is sent to every taxpayer in the district with an open invitation for the community to attend.

I will first address the procedural matters.  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.

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).  To the extent that petitioner is appealing the holding of the annual budget vote and election on the same day as the event, I decline to dismiss the appeal as untimely.  The event and vote were held on May 16, 2017 and the appeal was served within thirty days of the act of which petitioner complains on June 14, 2017.  To the extent petitioner is challenging respondents’ actions during a vote on a capital project on February 11, 2015, however, the appeal is clearly untimely and must be dismissed.

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the 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, 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 (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  Here, the caption does not name the school district or the board of education, but instead lists the individual board of education members, identifying them as “Board of Education Members.”  The record indicates that none of the named individual board member respondents were personally served.  Therefore, the appeal must be dismissed as against the individual respondents for improper service (see Appeal of Zwanka, 56 Ed Dept Rep, Decision No. 17,051). 

However, while petitioner failed to name the board of education as an entity, she did name the individual board members as members of the board.  Petitioner does not seek relief against any individual board member, but rather challenges the board of education’s practice of scheduling events on the same day as a school district meeting or election.  Under such circumstances, in the absence of a showing of prejudice to the board of education, the Commissioner has declined to dismiss for failure to name the board of education and has determined that service upon the district clerk was sufficient to confer jurisdiction over the board (see Appeal of Carrion, 50 Ed Dept Rep, Decision No. 16,228; Appeal of Lander, et al., 42 id. 201, Decision No. 14,822; Appeal of Goldin, 40 id. 639, Decision No. 14,572).  The board has had a fair opportunity to respond to the allegations in the petition and has not otherwise made any showing of prejudice resulting from petitioner’s failure to specifically name it as a respondent.  Therefore, I find that service upon the district clerk was sufficient to confer jurisdiction over the board.

However, to the extent petitioner challenges the scheduling of the event in May 2017, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner commenced this appeal on June 14, 2017, after the event was held on the day of the annual meeting and election.  Petitioner does not seek to have the results of the May 16, 2017 budget vote and school district meeting set aside, which means that no meaningful relief can be granted at this time with respect to the holding of the event in May 2017.

To the extent petitioner seeks an order directing the board to refrain from scheduling the event or other school functions on the day of the annual district meeting and election in the future, the appeal must be dismissed as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  Petitioner’s claim is not yet justiciable because it is not known whether the board will choose to schedule the National Honor Society dinner and Junior National Honor Society induction on the day of the annual district meeting and election in 2018 or thereafter or schedule any other event on the day of a district vote.

Though the appeal is dismissed on procedural grounds, for the benefit of the parties, I will discuss the merits.  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).

Petitioner requests that I direct respondents to refrain from “holding events” during which “any ... type of vote which must be presented to the residents of the school district.”  However, the mere scheduling of events simultaneously with a vote is not sufficient to establish that impermissible “targeting” has occurred (see Appeal of Vera, 56 Ed Dept Rep, Decision No. 17,077).  Prior Commissioner’s decisions have ruled that holding a fund raiser or a school function at the same time as an election does not constitute electioneering (see e.g. Appeal of Hiller, 47 Ed Dept Rep 304, Decision No 15,704; Appeal of McBride, et al., 39 id. 702, Decision No. 14,354).  Such scheduling is permissible, provided that a district gives notice to all district residents, and not just to those district residents that the board believes will be supportive of the budget, especially parents of students (see e.g. Appeal of Hiller, 47 Ed Dept Rep 304, Decision No. 15,704; Appeal of McBride, et al., 39 id. 702, Decision No. 14,354; Appeal of Sowinski, 34 id. 184, Decision No. 13,276).  Petitioner does not allege outright that the event was publicized only to parents with students attending the district’s schools, but instead suggests it by asserting that a “targeted group of voters – parents, guardians, grandparents ...” were invited and “received a meal at which their child(ren) were honored for their academic excellence.”  In their answer, respondents deny such allegations.  In support of her contention, petitioner submits a self-compiled list of voters and a program from the event.  It appears that petitioner compared the list of voters to the students listed in the program and alleges that “76 of those voters are related to or are students themselves being honored at the dinner/induction.” Petitioner alleges that “[t]his group was likely to vote in favor of the proposition since their child(ren) benefit directly by the capital project improvements.” 

On this record, petitioner has failed to carry her burden of proving that only students and the families of students attending district schools were given notice of the event.  Neither party has provided a sufficient description of the event to permit me to determine whether other members of the public were permitted to attend the event, though the program indicates that the induction ceremony was held in the school auditorium, which presumably could accommodate additional attendees.  Therefore, given the limited record in the appeal before me, the appeal would be dismissed on the merits as petitioner has failed to carry her burden of proof.

However, I urge respondent to review its past practice of allowing the event to be held on the same day as the annual school district meeting and election.  I remind respondent that in previous decisions the Commissioner has warned against "targeting" of a selective list of potential voters who might be more inclined to support the budget than other groups (see e.g. Appeal of Eckel, 46 Ed Dept Rep 279, Decision No. 15,507; Appeal of Sowinski, 34 id. 184, Decision No. 13,276; Appeal of Pucci, 31 id. 3, Decision No. 12,546).  If, indeed, special notice of the event was sent home with public school students or in some other way calculated to reach only the parents of public school students, there could be an appearance of improper partisan activity.  Moreover, the Commissioner has ruled in past decisions that it is permissible to schedule concerts, sporting events and fund raisers on the day of a vote (see e.g. Appeal of Vera, 56 Ed Dept Rep, Decision No. 17,077; Appeal of Hiller, 47 id. 304, Decision No. 15,704; Appeal of Eckel, 46 id. 279, Decision No. 15,507; Appeal of Sowinski, 34 id. 184, Decision No. 13,276).  A common characteristic of those events is that they are open to all district residents.  Therefore, unless the board permits all district residents to attend the event, and not just parents and the relatives of students, there could also be an appearance of improper partisan activity.  I caution respondent board that, if it chooses to continue the practice of holding the event on the same evening as the date of the election and budget vote, notice of such should be given to all district residents in the same manner, and all district residents should be invited and permitted to attend.

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

THE APPEAL IS DISMISSED.

END OF FILE