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Decision No. 12,726

Appeal of JAMES W. LUENING from action of the Board of Education of the Penfield Central School District regarding an annual budget vote.

Decision No. 12,726

(June 26, 1992)

Harris, Beach & Wilcox, Esqs., attorneys for respondent, Alfred L. Streppa, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a resident of the Penfield Central School District, appeals respondent board's actions regarding an annual budget vote. The appeal must be dismissed.

Respondent board of education held its annual budget vote for the 1991-92 school year on May 8, 1991. The board presented four propositions to the voters for approval. Proposition No. 1, which was approved by a vote of 2358 to 2250, concerned the operating budget in the amount of $35,421,420 for the 1991-92 school year. Proposition No. 2, defeated by 2313 to 2278, concerned the purchase of four school buses. No. 3, approved by a vote of 2363 to 2236, concerned the establishment of a capital reserve fund. Finally, proposition No. 4, a transportation proposal, was approved by 2633 to 1897.

Petitioner contends that voter approval of proposition Nos. 1 and 3 was secured by respondent's illegal and improper actions. Petitioner alleges that several days prior to the vote, a notice on the district office drivers' bulletin board in the school bus drivers' ready room at the district transportation facility stated: "DRIVERS, PLEASE WATCH FOR (VOTE-NO) SIGNS ON YOUR RUN, AND NOTIFY THE OFFICE OF LOCATION. (NOT-OVER-RADIO)." Petitioner further alleges that, subsequent to the notice's appearance, signs advocating a negative vote on the budget propositions were removed from several locations in the district. Petitioner contends that the notice intimidated school employees to support the budget and led to the removal of the signs, and that such actions reduced the number of votes against the budget. Petitioner also alleges that respondent misused district funds to issue deceptive and misleading information regarding the magnitude of the increase in the proposed budget and the size of the contingency budget, to influence voters to vote in favor of the budget.

Petitioner contends that the above acts were unethical and constitute neglect of duty. Petitioner also alleges that such acts constitute a misuse of school funds to advocate in favor of the propositions. Petitioner requests that I issue an order declaring the May 8, 1991 vote null and void with respect to the operating budget and capital reserve propositions and that respondent be directed to refrain from similar practices in the future and advised that repetition of such conduct is grounds for removal from office.

Respondent denies petitioner's allegations and raises certain procedural issues which must be addressed before proceeding to the merits. First, respondent contends that petitioner is not entitled to bring this appeal on behalf of a class of individuals. Petitioner requests that I permit him to appeal on behalf of "all other Penfield school district residents who voted against the 1991-92 district budget...and on behalf of all district residents who would have voted against the budget had they not been deceived and/or intimidated by actions of the district school [sic] administration and board of education." Pursuant to 8 NYCRR 275.2(a), a class appeal is permitted only where the class of individuals is so numerous that joinder of all members is impracticable and where all questions of law and fact are common to all members of the class. Petitioner has not established that all questions of law and fact are common to all members of the class in that the record fails to indicate that any other district residents voted against the budget propositions for the same reasons set forth in the petition. The district residents who voted against the district budget may have done so for any number of reasons. Petitioner's characterization of the class he seeks to represent is also broad enough to include those who voted against the transportation proposition, even though petitioner does not challenge such proposition in this appeal. Since petitioner has failed to establish that there are other members of the alleged class, he cannot show that the members of the class are so numerous that joinder is not practicable (Appeal of Almeter, 30 Ed Dept Rep 230). I, therefore, find that this appeal may not be maintained as a class appeal.

Respondent also contends that the appeal should be dismissed as untimely. An appeal to the Commissioner must be instituted within thirty days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). Petitioner appeals from the results of the May 8, 1991 budget vote. Petitioner served the petition on respondent more than thirty days later, on June 11, 1991. Petitioner contends that he was unable to commence the appeal within the time specified because of his inability to acquire evidence to be used as exhibits. Petitioner also contends that the delay was caused, in part, by his unfamiliarity with the appeal process. Finally, petitioner contends that he attempted to serve respondent on June 10, 1991, by serving a newly elected school board member, but that, unknown to petitioner at the time, such member's term had not yet started.

The time to commence an appeal will not be extended because of ignorance of the appeal process (Appeal of Goldberg, 29 Ed Dept Rep 476). However, it appears that the delay in serving the petition was principally caused by petitioner's inability, until June 9, 1991, to obtain permission from an individual to use his photograph as an exhibit in this appeal. I will excuse the untimeliness of this appeal in view of petitioner's uncontradicted allegations setting forth his attempts to obtain permission to use the photograph, the fact that service was attempted within one day after obtaining such permission, that service was made on respondent the following day, and that respondent has failed to demonstrate any prejudice resulting from the delay in service (Appeal of Moser, 23 Ed Dept Rep 153).

However, the record indicates that service of the petition was made only upon respondent board of education. Therefore, to the extent the petition requests that I take action against any individuals other than respondent board of education, such claims must be dismissed for failure to properly name and join such individuals as parties to this appeal by serving the petition upon them (Appeal of Kriaris, 31 Ed Dept Rep 353; 8 NYCRR "275.8).

Nevertheless, the appeal must be dismissed on the merits. A school district election will not be set aside in the absence of proof that the alleged irregularities or misconduct affected the outcome of the election (Appeal of Como, et al., 28 Ed Dept Rep 483), are so pervasive in nature as to vitiate the electoral process (Matter of Gilbert, 20 Ed Dept Rep 174), or that the irregularities demonstrate a clear and convincing picture of informality to the point of laxity with respect to the election provisions of the Education Law (Matter of Nicoletta, 7 Ed Dept Rep 115; Matter of Levine, 24 id. 172, aff'd subnom; Capobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 112 AD2d 640, 492 NYS2d 157). Implicit in these decisions is a recognition that there are rare cases in which errors in the conduct of a school election have become so pervasive that the fundamental fairness of the election is vitiated (Appeal of Como, supra).

With regard to his allegations concerning the notice to bus drivers to report "vote-no" signs, even if I accept, for purposes of argument, that the notice appeared several days prior to the budget vote, there is nothing in the record to show that the notice was placed by school officials or personnel or that respondent know of or authorized the posting of such notice. Respondent denies such knowledge or authorization and the mere fact that such notice appeared at the district transportation facility is insufficient to establish respondent's involvement. Similarly, there is no proof that respondent directed, caused or was otherwise involved with the subsequent removal of "vote-no" signs or even that the placement of the notice is related to such removal. Nevertheless, the appearance of such notice on school property is unacceptable and respondent is warned to exercise the utmost diligence to ensure that similar notices do not appear in the future.

Petitioner also contends that respondent board and school administrators misused district funds by issuing misleading communications to voters that advocated respondent's position on the voter propositions in issue. Petitioner alleges that the March 1991 special edition of the Penfield School News, which is financed by district funds and is disseminated by respondent to district residents, contained a comparison of the proposed 1991-92 operating budget to the 1990-91 operating budget which was misleading because the 1991-92 budget excluded the transportation costs which were set forth in a separate proposition. Petitioner contends that respondent board and school administration thereby understated the budget increase of the 1991-92 operating budget and thus influenced voters to vote in favor of the proposed budget. Petitioner alleges that respondent board and school administration engaged in the same tactic in the April 1991 edition of the Penfield School News and in information presented by respondent to a local newspaper. Petitioner also alleges that the April edition of the Penfield School News cited a 1990-91 budget greater than that approved by the voters, and that such misstatement served to further reduce the percent increase. However, respondent indicates that the increased figure reported for the 1990-91 budget reflected State aid in the form of Excellence in Teaching (EIT) monies received by respondent after the 1990 budget vote.

After reviewing the March and April editions of the Penfield School News, I find that the publications adequately notified district residents of the method by which the proposed 1991-92 operating budget was computed with respect to transportation costs, and that the proposed transportation figure in the 1991-92 operating budget did not include the transportation costs that were included in the previous year's operating budget. Furthermore, the school news publications set forth the impact the separate transportation proposition would have upon district tax rates. In addition, the comparison of the 1990-91 and 1991-92 budgets contained in the April edition of the Penfield School News accurately reflects the amount respondent actually spent on its operating budget in 1990-91, which included EIT monies, with the amount respondent believed, at the time of the April edition, it would have available to spend in 1991-92. Therefore, I do not find that respondent misled voters with respect to the reported increase.

Even if I were to accept petitioner's contention that the reported increase in the operating budget was misleading, petitioner has failed to establish that the outcome of the election was affected by the inaccurate reporting of the increase. Petitioner merely assumes that a "considerable number" of voters were deceived and misled by respondent's actions and, therefore, voted in favor of the proposed budget or did not vote, and that such voters would have voted against it if they were aware of the allegedly true increase.

Petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). Based upon the record before me, I find that petitioner has failed to establish that the results of the budget vote should be set aside.

I have examined petitioner's other arguments and find them to be without merit.