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Decision No. 17,296

Appeal of CERINA FLIPPEN from action of the Board of Education of the Wyandanch Union Free School District, Shirley Baker, Barry Sexton, Ronald Allen, Sr., James Crawford, Nancy Holliday, Michael Talbert, Sr., and Barry White, as board members, regarding a bond referendum.

Decision No. 17,296

(December 21, 2017)

Guercio & Guercio, LLP, attorneys for respondents, Lisa Hutchinson, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals various actions of the Board of Education of the Wyandanch Union Free School District (“respondent board”) and board of education trustees Shirley Baker, Barry Sexton, Ronald Allen, Sr., James Crawford, Nancy Holliday, Michael Talbert, Sr., and Barry White (collectively, “respondents”)[1] in relation to a January 10, 2012 bond referendum.  As relief, petitioner seeks nullification of the results of the bond referendum and a new vote.  The appeal must be dismissed.

According to the record, on September 27, 2011, respondent board conducted a special district meeting to present two propositions to district voters.  One was for a capital improvement project (“CIP”) for the district’s existing facilities totaling 24.5 million dollars.  The second proposition was for construction, improvement and demolition of a district building for a cost not to exceed 154.9 million dollars.  District voters rejected both propositions. 

Thereafter, by letter dated October 14, 2011, the principal of Wyandanch Memorial High School invited district parents/guardians to visit the high school on October 26, 2011, and observe their child’s “learning experience.”  According to the record, petitioner and several other individuals accepted the invitation and toured the high school. 

On or about November 9, 2011, respondent board approved a resolution to present a CIP bond proposition to the voters at a special district meeting to be held on January 10, 2012.  Notice of the special district meeting (“Notice”) was published on November 26, 2011.  Thereafter, on November 30, 2011, respondent board approved a revised Notice to include language regarding personal registration and setting forth the January 5, 2012 deadline for such registration to be able to vote in the January 10, 2012 bond referendum.  According to the district clerk, the revised Notice was published three times prior to the vote and was also posted in 20 locations in the district.

In December 2011, a postal card was sent to district residents notifying them of public meetings to be held on December 14, 2011 and January 4, 2012 regarding the CIP, as well as the January 10, 2012 bond referendum.  It appears that sometime during the week prior to the vote, the district mailed a four page color brochure to district residents regarding the CIP.  The district’s Parent Teacher Organization (“PTO”) also distributed flyers supporting the CIP.  Finally, on January 9 and 10, 2012, the district’s automated telephone system was used to contact district residents regarding the vote. 

District voters approved the bond proposition, with 166 votes in favor and 116 votes opposed.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner challenges the result of the January 10, 2012 bond referendum and, as relief, requests that it be set aside and a new vote held.  Petitioner asserts that respondent improperly used district resources to advocate for a favorable vote on the bond proposition, that district officials and employees openly supported the bond proposition and that certain of the individual respondents suppressed dissenting viewpoints.  Petitioner also contends that the Notice of the vote was confusing and improper.  In addition, petitioner claims that the individual that respondent board appointed as chairperson of the January 10, 2012 special district meeting was not impartial.  Petitioner also contends that absentee ballots were improperly rejected during voting hours and that the chairperson turned away voters on the day of the vote.  Petitioner asserts that respondent board’s inclusion of certain costs for roof repairs in the CIP were unnecessary and, thus, misleading to voters.  Finally, petitioner appears to contend that the January 4, 2012 meeting regarding the CIP and bond proposition violated the Open Meetings Law in that no minutes of the meeting were taken.  Petitioner claims generally that, if not for respondents’ “trickery” and improper advocacy, the results of the January 10, 2012 vote would have been different.  As relief, petitioner seeks nullification of the January 10, 2012 bond vote and an order directing respondent board to conduct a new vote. 

Respondents assert that their conduct and the conduct of district staff have been proper at all times relevant to this appeal.  Respondents state that no improper advocacy occurred; that the high school building visit and tour were properly conducted; and that the postal card, the color brochure, and the automated telephone calls were permitted as “informational.”  Respondents deny that at the December 2011 and January 2012 meetings district residents were impermissibly urged to vote a certain way in the referendum.  Respondents further maintain that the correction to the Notice decreased any potential for voter confusion and was legally permissible.  Respondents also assert that the appointed election officials were impartial and not under any lawful disqualification from serving.

Respondents assert that the appeal is untimely.  Respondents also contend that the petition does not contain a clear and concise statement of a claim, that petitioner has not met her burden of proof and that petitioner has not established facts or a clear legal right entitling her to the relief sought.  Respondents further contend that petitioner has not established that any irregularity occurred in connection with the January 10, 2012 bond referendum or that results of the vote were affected by any alleged improper advocacy, confusion or other irregularity.  Finally, respondents object to petitioner’s submission of a response to its affidavits in opposition to petitioner’s request for interim relief.  Respondents request that I reject such response and also that I dismiss the appeal in its entirety.

Before addressing the merits, I will first address several procedural matters.  On February 20, 2012, petitioner served a “reply affidavit” in response to respondents’ affidavit in opposition to her stay request.  The reply affidavit contains additional exhibits and affidavits of individuals in support of the petition.  There is no general authority under the Commissioner’s regulations for such a response (see 8 NYCRR §275.3; Appeal of DeLouise, 49 Ed Dept Rep 384, Dec. No, 16,058; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  Although additional affidavits, exhibits and other supporting papers may be submitted by application pursuant to §276.5 of the Commissioner’s regulations, petitioner has not made such an application.  Instead, petitioner purports to submit the reply affidavit and exhibits in reply to respondents’ opposition papers to petitioner’s request for a stay.  As such, 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).  Accordingly, I will not consider petitioner’s February 20, 2012 submission as it does not meet the requirements of 8 NYCRR §276.5 for consideration.  Moreover, to the extent it is intended as a “reply,” petitioner includes no satisfactory explanation of why the materials submitted - exhibits, affidavits, etc. - could not have been provided at the time of service of the petition.

Moreover, I will not consider any claims by petitioner that allege violations of the Open Meetings Law (Public Officers Law, Article 7).  Specifically, petitioner asserts that respondents failed to keep minutes of the January 4, 2012 public meeting to discuss the CIP.  Respondents assert that the meeting was informational only and that no quorum of respondent board’s members was present.  Therefore, respondents claim that recording minutes was unnecessary.  Such claims, however, are not properly before me.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law 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 McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I decline to address petitioner’s claims alleging violations of the Open Meetings Law.

Respondents also contend that the appeal is untimely.  Petitioner complains of various actions purportedly taken by respondents in relation to the January 10, 2012 bond referendum.  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).  However, with respect to appeals involving school district elections, I have held that it would be unreasonable and detrimental to the efficient resolution of a petitioner’s claims to require that petitioner institute separate appeals with respect to acts comprising a series of events closely related to the election (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 Maliha, 41 id. 367, Decision No. 14,716). In such circumstances, even though the appeal involves acts occurring more than 30 days from the date the appeal is commenced, I have declined to dismiss the appeal as untimely provided the appeal is commenced within 30 days of the election (see 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 Maliha, 41 id. 367, Decision No. 14,716).  Petitioner commenced this appeal on February 3, 2012, within 30 days of the January 10, 2012 bond vote.  Therefore, I decline to dismiss the appeal as untimely.

Nevertheless, the appeal must be dismissed on 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).  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).

Petitioner seeks invalidation of the January 10, 2012 bond referendum based on several alleged irregularities that petitioner claims occurred in relation to that vote.  First, petitioner challenges the Notice that respondents published in advance of the vote, although petitioner’s claims regarding such Notice are not entirely clear.  Education Law §§2004 and 2007 require that notice of a special school district meeting be published four times within the seven weeks preceding the vote, with the first publication at least 45 days prior to such vote.  According to the record, the initial publication of the Notice did not include information regarding the deadline for personal registration for voters to be able to vote in the January 10, 2012 referendum.  Upon discovering the omission, respondents corrected the Notice and such information was included in the remaining three publications.  Respondents also posted the Notice at various locations in the district.  The proceedings of a district meeting are not invalidated for want of due notice unless the omission of notice was willful or fraudulent (Education Law §2010).  Here, upon discovering the omission in the Notice, respondent board immediately corrected it and published the corrected Notice for three of the four times required under Education Law §2004; it was also posted in the district.  I note that petitioner makes no allegation that respondents’ error in the initial Notice was willful or fraudulent.  Indeed, petitioner’s complaint regarding the Notice appears to be that the Notice included inaccurate information that misled voters into believing that they had to re-register in order to vote at the January 10, 2012 special meeting.  These allegations are neither supported by the text of the Notice nor is there any evidence submitted from any resident regarding such alleged misunderstanding.  Petitioner does assert in conclusory fashion that one individual, Yolanda Garret, was precluded from voting as a result of the allegedly confusing Notice.  However, petitioner did not provide any affidavit from Ms. Garret in support of her claim.  It is well settled that 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).  Accordingly, petitioner’s claims regarding the Notice are not substantiated in the record.

Petitioner also claims that respondent board improperly appointed Rutha Bush, a district resident, as chairperson of the district meeting.  Petitioner claims that Ms. Bush was not impartial because she is a member of a church wherein one of respondent board’s members is pastor.  Education Law §2025 establishes the qualifications of an election chairperson and requires only that the chairperson be a qualified voter in the district (see e.g. Appeal of Bentley and Boll, 51 Ed Dept Rep, Decision No. 16,356).  There is no prohibition in Education Law §2025 against an attendee of the same church in which a board member is pastor serving as chairperson of a school district vote or election.  Respondents’ district clerk avers that she confirmed that Ms. Bush is a qualified voter in the district, and petitioner has not alleged or demonstrated otherwise.  Therefore, I find no basis on which to conclude that Ms. Bush’s appointment as chairperson was improper.  

Petitioner also alleges that Ms. Bush prevented several voters from exercising their right to vote.  Respondents deny the allegation and petitioner offers no proof in support of her claim.  Accordingly, petitioner has failed to meet her burden of proof on that claim.

Next, petitioner asserts in a single conclusory allegation that the time in which absentee ballots were accepted on the day of the vote was improperly limited and that such ballots were not accepted up through the closing of the polls.  Petitioner relies on language in a district brochure indicating that absentee ballots were required to be submitted by 5:00 p.m. the date of the vote.  Education Law §§2018-a[8] and 2018-b[9], governing absentee ballots, provide that an absentee voter’s ballot shall not be canvassed, unless it is received in the office of the district clerk “not later than five P.M. on the day of the election.”  Thus, the information set forth in the district’s brochure comports with Education Law and petitioner provides no further detail or proof of any irregularity relating to absentee ballots.  Consequently, petitioner’s claim is without merit.

Petitioner also contends that respondents, individually and as a board, engaged in improper advocacy and that respondent board improperly used district resources to persuade voters to vote in favor of the bond proposition.  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). 

Additionally, 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).

First, petitioner contends that a postal card and four-page color brochure mailed to district residents constitutes improper advocacy by respondents, warranting nullification of the January 10, 2012 bond vote.  I have reviewed the postal card and the brochure and find that they are informational in nature.  The postal card informed district residents of the dates of public meetings to discuss the CIP, as well as the date of the bond proposition.  While the postal card states “PLEASE SUPPORT OUR CHILDREN” and “HELP Support our Children,” it does not specifically exhort the voters to vote “yes” on the proposition and I do not find that the postal card is partisan.  Its general message appears to be a reminder to community members to participate in the vote and it does not advocate a “yes” vote (see e.g. Appeals of Schadtle and Wilcox, 38 Ed Dept Rep 599, Decision No. 14,102 [“The encouragement of the electorate to exercise the franchise is not improper per se, but a district must not engage in partisan activity during the conduct of an election.”; “[P]etitioners’ additional contention that the PTA flyer’s use of a checkmark after the phrase ‘PLEASE VOTE’ must be construed as meaning ‘VOTE YES’ is speculative and without merit.”]).  However, in light of the concerns raised in this appeal, I remind respondent to use caution in the future to ensure that such mailings are strictly objective and factual and, therefore, less likely to cause confusion and/or invite criticism (see Appeal of Sotirovich, 51 Ed Dept Rep, Decision No. 16,360; Appeal of Moessinger, 33 id. 487, Decision No. 13,123; Appeal of Brower, 33 id. 368, Decision No. 13,081).

The brochure provides factual information regarding the CIP and bond proposition and depicts current conditions of the school district’s buildings.  As noted above, a board of education may use public resources to present objective, factual information to the voters concerning a proposed annual budget or proposition(s).  Petitioner cites no legal basis prohibiting such information from including color photographs of places allegedly in need of repair (see Appeal of Goldin, 40 Ed Dept Rep 628, Decision No. 14,572).  I note that the brochure merely reminded district residents to vote but did not advocate for any particular manner of voting.  Thus, I find that the publications do not constitute improper advocacy by respondents.   

Petitioner further argues that flyers by the school district’s PTO advocating in favor of the bond proposition were sent home with elementary school students and that the district’s automated telephone system was used improperly to advocate for approval of the bond proposition.  Respondents deny any knowledge of PTO flyers being distributed to elementary school students and correctly note that petitioner does not present any affidavits or other proof to substantiate her claim.  Respondents also submit an affidavit of its superintendent denying petitioner’s allegations regarding the use of the district’s automated telephone service and asserting that it was used solely to remind residents to vote but did not advocate any particular position.  Petitioner failed to submit any evidence or affidavits to the contrary in support of her allegations.  Therefore, I find that petitioner’s claims are not substantiated in the record.

Petitioner also asserts that, at a school basketball game, board member Barry Sexton harassed two residents who were discussing the CIP and bond proposition.  Petitioner claims that the board member improperly interjected into the conversation to argue for voting in favor of the proposition.  Respondents deny petitioner’s allegations.  Petitioner submits no evidence that such conversation took place or that, if true, any individual was intimidated such that their vote was affected.  Moreover, 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).  Thus, even if the board member expressed his views in a conversation at a school basketball game, such conduct would not, in and of itself, be improper.  Petitioner has failed to demonstrate that any irregularity occurred in this instance.

Next, petitioner asserts that respondent board engaged in improper advocacy at various district events and meetings prior to the bond vote.  Petitioner asserts that, at the direction of respondent board, the high school principal invited parents to tour the high school on October 26, 2011, purportedly to observe their children’s learning experience, but that the event was, instead, used to advocate for the CIP.  Petitioner attended the October 26, 2011 event.  In response, respondents submit an affidavit by the board president, who also attended the October 26, 2011 event, in which she avers that, during that tour, parents visited classrooms, observed teachers, and explored the facilities.  She states that parents brought up concerns regarding the condition of the building and, although they were told that, if they were concerned, they could support a capital improvement plan, no board or staff member advocated for passage of the bond proposition.  Indeed, respondents note that, at the time of the high school visit, respondent board had not yet approved presentation of the bond proposition to the voters in January; the determination to hold a special meeting for that purpose did not occur until November 9, 2011.  At best, the evidence presented on this issue - petitioner’s verified allegations in her petition and respondents’ submitted affidavit of the board president – is in equipoise.  Petitioner has the burden of proof and, in this instance, has failed to meet that burden to establish her claim.

Petitioner also asserts that improper advocacy took place at two other meetings before the bond vote.  Petitioner claims that, at a December 2011 PTO meeting to discuss a high school/college program and also at a January 4, 2012 informational meeting regarding the bond proposal, board members engaged in improper advocacy in favor of the CIP and the bond vote. 

With respect to the December 2011 PTO meeting, petitioner asserts that four board members were present; respondents claim that only three members attended.  Although not entirely clear, petitioner apparently contends that, instead of devoting time to discuss the high school/college program, the majority of the time was spent allowing the board members to discuss building conditions and the CIP.  Petitioner claims that attendees were told to vote “Yes” on the bond proposition.  Respondents submit an affidavit by the board president, who attended the meeting.  She states that discussion of building conditions occurred, but only toward the end of the meeting.  She denies that she, or any other board member present, told anyone how to vote.  Petitioner does not assert that she attended the meeting and submits no affidavit from anyone at the meeting to counter respondents’ evidence or otherwise support her conclusory allegations.  Consequently, petitioner has not met her burden of proof.

Although not entirely clear, petitioner also appears to claim that, at a January 4, 2012 public hearing to provide information about the CIP, members of respondent board and district employees who were present, in effect, advocated for approval of the bond proposition by permitting a presenter from its architectural firm to address the advisability of the CIP.  Respondents admit that such informational meeting took place, that two board members were in attendance and that the presenter described improvements that were the subject of the proposition to be considered on January 10, 2012 and financing options available to the district by means of the bond.  However, respondents deny that any improper advocacy took place at the meeting.  As noted above, 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).  Although petitioner asserts that “the BOE exerted undue influence to convince resident voters to reverse their position about the CIP proposition,” she provides no affidavits from attendees or other proof to establish improper advocacy by respondents at the January 4, 2012 public hearing on the CIP.

Finally, petitioner appears to claim that voters were provided misleading information regarding the CIP in that certain included roof repairs had already been made under a prior roof reconstruction contract.  Respondents deny petitioner’s claim and assert that the portion of the roof repaired under the prior contract was not the same as that included in the CIP.  Respondents submit an affidavit by the board president in support of its position.  Petitioner submits no evidence to contradict respondents’ assertions.  Therefore, she has not sustained her burden of proof and I am unable to conclude, on this record, that any misleading information was presented to voters.

Based on the record before me, I cannot conclude that any irregularity occurred in connection with the January 10, 2012 special district meeting on the bond proposition.  Although respondents’ submissions are not overwhelming, petitioner has the burden of proof and has not met such burden herein.  Moreover, even if her allegations were true, petitioner has presented no evidence that the outcome of the January 10, 2012 vote was affected by her claimed irregularities.  The bond proposition was approved by 50 votes.  Petitioner does not include a single affidavit indicating that any voter would have voted against the proposition were it not for respondents’ alleged improper actions.  Indeed, in her petition, petitioner alleges merely that, “[i]t is moreso probable than unlikely that complained of improper advocacy caused the resultant effect of bond approval....”  As noted above, it is well settled that 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).  Consequently, I find no basis in this record on which to overturn the results of the district’s January 10, 2012 bond vote.

I have reviewed petitioner’s remaining contentions and find them to be without merit.  Although dismissal of the appeal is warranted on this record, respondents are reminded to ensure that all district meetings and elections are clearly conducted in full compliance with the requirements of law so as to avoid unnecessary controversy in its district with respect to such meetings and elections.        

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] I take judicial notice that Barry Sexton, Michael Talbert, Sr. and Barry White are no longer members of respondent board.