Appeal of JAMES E. GRIFFIN, from action of the Board of Education of the Cold Spring Harbor Central School District regarding a bond referendum and application for the removal of board trustees.

Decision No. 17,942

(November 24, 2020)

Frazer & Feldman, LLP, attorneys for respondent, James H. Pyun, Esq., of counsel

ROSA., Interim Commissioner.--Petitioner appeals from action of the Board of Education of the Cold Spring Harbor Central School District (“board”) relating to a bond referendum.  Petitioner also seeks the removal of all sitting board trustees.  The appeal must be dismissed and the application for removal must be denied.

Petitioner is a resident of respondent’s district.  On or about November 8, 2019, respondent mailed a letter to district residents informing them of a bond vote that would take place on November 19, 2019.  A community bond forum was held on November 12, 2019 at which respondent discussed the financial implications of the bond.  Respondent previously held similar community bond forums on June 18 and September 10, 2019.

On November 19, 2019, respondent conducted a bond vote at which voters considered a proposition to authorize the expenditure of $34,425,000.00 for a variety of construction projects and the issuance of bonds to finance such projects.  District voters approved the proposition by a margin of 538 votes to 403 votes.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 9, 2019. 

Petitioner alleges that respondent failed to disclose the amount of the bond in the November 2019 letter and falsely stated that the bond would result in no additional cost to taxpayers.  Specifically, petitioner asserts that respondent’s failure to “advise the voters that there would be a reduction in their taxes if the bond proposal were not approved was financial malpractice and a material misrepresentation of significant facts.”  Petitioner requests that the Commissioner void the result of the November 19, 2019 bond vote due to respondent’s “incompetence and/or intentional deception of the voters and the Board’s failure to meet their fiduciary responsibilities.”  Petitioner also requests that all members of respondent’s board be removed for “gross incompetence and failure to meet their duties of care, fiduciary responsibility and governance.”  Petitioner further requests permission to represent a class consisting of all district residents. 

Respondent argues that the petition should be dismissed insofar as petitioner seeks removal of board members because he failed to join these members in this appeal.  Respondent also contends that petitioner fails to establish a legal basis to remove individual board members.  Respondent also argues that petitioner’s request for class status should be denied since petitioner fails to adequately describe the class which he seeks to represent and how all questions of fact and law are common to members of the class. 

Respondent argues that petitioner fails to submit any evidence, such as affidavits from district residents, to support his claims that voters were deceived or misinformed with respect to the tax neutral impact of the 2019 bond referendum; moreover, respondent argues that petitioner fails to explain how its analysis of the tax-neutral impact was inaccurate.  Respondent maintains that it acted in good faith and met its duty of care and fiduciary responsibility by providing adequate and accurate information to the public concerning the fiscal impact of the 2019 bond referendum.    

I must first address two preliminary issues.  In addition to submitting a reply to respondent’s answer in this matter, petitioner also submitted a response (“response”) to respondent’s affirmation in opposition to petitioner’s request for interim relief (“opposition papers”) after his request for interim relief was denied.  Petitioner’s response to respondent’s opposition papers is not a pleading included in §275.3 of the Commissioner’s regulations (see Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Jiava, 55 id., Decision No. 16,817).  However, given that petitioner is pro se and respondent does not object to this submission, I will accept petitioner’s response, which is in the nature of a reply, to respondent’s answer for purposes of §§275.3 and 275.14 of the Commissioner’s regulations (see Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Jiava, 55 id., Decision No. 16,817).

However, with respect to both the response and the reply, I note that 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply and response, 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.

Petitioner’s request to remove individual board members must be dismissed for failure to join them as parties to this appeal.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Here, petitioner did not name any board member in the caption of the notice of petition, nor did he serve a copy of his petition upon any individual trustees.  Because the removal of a sitting board member would plainly affect his or her rights, any individual board members whom petitioner seeks to have removed from office are necessary parties to this appeal.  Accordingly, I find that petitioner failed to properly join such trustees, warranting dismissal of the application (Appeal of a Student with a Disability, 55 Ed Dept Rep, Decision No. 16,907; Appeal of Affronti, 54 id., Decision No. 16,756).     

To the extent petitioner seeks to maintain the appeal as the representative of a class consisting of all district residents, class status is denied.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  While petitioner explains that the school district is “home to more than 5,000 residents,” he does not specifically identify the number of individuals he seeks to represent.  Moreover, petitioner offers no explanation as to how all questions of fact and law are common to all residents of the school district.  Accordingly, petitioner’s request for class status is denied. 

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 Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Caswell, 48 id. 472, Decision No. 15,920), were so pervasive that they vitiated the electoral process (Appeal of the Bd. of Educ. of the Minerva Central School District, 54 Ed Dept Rep, Decision No. 16,628; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905), 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 Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner’s primary contention in this appeal is that respondent’s November 2019 letter was deceptive and misrepresented critical facts.  In the letter, respondent indicated that it had “developed a financial plan ... with a tax levy neutral impact and no additional cost to taxpayers.”  Petitioner complains that respondent failed to apprise district residents that, if they rejected the bond resolution, they would enjoy savings in the form of a lower tax bill.  Respondent maintains that the bond resolution will not result in an additional tax levy because it plans to structure its borrowing so that the district does not take on any new debt until previous debts are paid in full, and that additional interest and costs will be offset.

The September 10, 2019 community bond presentation similarly indicated that the new bond payments would be “tax levy neutral” and would present “no additional cost to the taxpayers.”  The record indicates that the total cost of the project was projected to be $34,425,000.  Of that amount, $1,225,000 was to come from the district’s capital reserves fund.  The remaining $33,200,000 was to come from the issuance of debt in the form of a bond.  Consistent with the June 18, September 10, and November 12, 2019 presentations and materials on the bond referendum, the district’s assistant superintendent for business (“assistant superintendent”) explained in the November 2019 letter that the new bond would be tax levy neutral because “existing debt expiring in 2021-22 would be replaced at no additional cost to taxpayers.”  He further explained that “Bond Anticipation Note interest on the new bond would be offset by existing Debt Service Reserve Funds at no additional cost to taxpayers.”  The assistant superintendent also noted that an approximately 17.5 percent reimbursement in state building aid would offset construction and borrowing costs. 

Petitioner has failed to explain why respondent’s reasoning was erroneous, arbitrary or capricious.  Contrary to petitioner’s claim that respondent failed to inform district residents of a potential tax decrease in the event the bond was not approved, the record reflects that respondent repeatedly informed district residents before the bond vote that the new bond would be replacing old debt.  Evidence in the record also shows that respondent repeatedly acknowledged that the amount of the bond was $34,425,000.  Thus, the statements in the November 2019 letter must be considered together with the other materials and presentations offered by respondent. 

I find that this information, as a whole, accurately described the district’s bond proposal.  Therefore, I find that petitioner has not met his burden of proving that respondent’s claims were deceptive or constituted a misrepresentation of fact.[1]

Even assuming, arguendo, that I accepted petitioner’s argument that respondent provided deceptive or misleading information on the tax impact of the bond referendum, petitioner seeks no relief related to this violation.  The sole relief petitioner seeks in this respect is to “void the results” of the November 19, 2019 vote, and petitioner has failed to meet his burden of proving that such information affected the outcome of the bond referendum (see Appeal of Nahas, 55 Ed Dept Rep, Decision No. 16,816).  Where a vote is on a capital project and the financing thereof, to demonstrate that the outcome has been affected, the proof must contain affidavits or statements from individuals who voted in favor of the referendum that their vote would have been otherwise but for the alleged misconduct (Appeal of Herloski, 50 Ed Dept Rep, Decision No. 16,089; Appeal of Krantz, 38 id. 485, Decision No. 14,077).  Petitioner has failed to submit a single affidavit from a district voter stating that the alleged inaccurate or incorrect communications affected his or her vote.  As indicated above, the proposition was approved by a margin of 135 votes.  Therefore, the record contains no basis to overturn the results of the bond vote.

I have considered petitioner’s remaining contentions and find them to be without merit. 

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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