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Decision No. 12,774

Appeal of DAVID RUIZ from action of the Board of Education of the East Irondequoit Central School District relating to the expenditure of school district funds.

Decision No. 12,774

(August 5, 1992)

Mousaw, Vigdor, Reeves, Heilbronner & Kroll, Esqs., attorneys for respondent, Dennis T. Barrett, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the alleged misuse of school district funds by the Board of Education of the East Irondequoit Central School District ("respondent") to influence district residents to vote in favor of a budget presented by the board. The appeal must be dismissed.

Petitioner is a resident of respondent's district. Prior to the budget vote, a newsletter was mailed by the board of education to district residents. The newsletter contained budget information concerning district operating expenses, including total aidable pupil unit (TAPU) and equalized tax rates, as compared to other districts in the area. The budget was defeated at the annual election held on June 5, 1991. This appeal ensued.

Petitioner alleges that the budget information provided by respondent in the newsletter advocated passage of the budget and presented an inaccurate measure of district expenses. Petitioner contends that, as such, the newsletter's publication constituted an improper expenditure by respondent for the distribution of partisan materials. Instead of using the TAPU figures, petitioner argues that gross budget statistics provide a more accurate measure of the district's actual per pupil cost of education. Petitioner also alleges that respondent distorted the impact of a contingency budget by stating that sports programs and yearbooks would be eliminated. Petitioner seeks an order directing the superintendent and respondent board to discontinue disseminating partisan materials.

Respondent asserts that its actions were proper because the district's newsletter presented purely factual information to voters without exhorting them to support a particular position. Respondent also alleges that the petition fails to state a claim.

The appeal must be dismissed. Regarding petitioner's claim that respondent's comparison of the TAPU formula and equalized tax rate is inaccurate because it does not present the district's complete financial picture, I note that the TAPU statistic is a figure used by the State to compute operating aid (Education Law '3602[8]). Since the equalization rate upon which the estimated tax rate is based is determined by the State of New York and is not a calculation devised by respondent, I find petitioner's contention that these formulations are biased, without merit.

I also reject petitioner's contention that respondent's actions in disseminating partisan information violate the principles articulated by the Court of Appeals in Matter of Phillips v. Maurer, 67 NY2d 672. In that case, the Court of Appeals ruled that boards of education may not expend school district funds to exhort residents of the district to vote in favor of a budget or proposition advocated by the board. My review of the newsletter in question indicates that it provides factual information that does not exhort the electorate to vote a certain way (Appeal of Loriz, 27 Ed Dept Rep 376).

Petitioner also contends that respondent improperly conveyed information to the public concerning the impact of a contingency budget. Respondent indicated in its materials that under a contingency budget, sports programs and the yearbook would be eliminated. Petitioner argues that sports programs constitute physical education and are State mandated activities required by law. He is mistaken. Maintenance of interscholastic athletic teams is not considered an ordinary contingent expense that should be funded under a contingency budget (see, Op. Commissioner Educ. Dept., 1967, 7 Ed Dept Rep 153). Likewise, funding for a yearbook advisor with district funds does not fall within the definition of an ordinary contingent expense (see, Op. Commissioner Educ Dept., 1973, 12 Ed Dept Rep 162). Therefore, the information respondent provided relating to the exclusion of those items in a contingency budget was proper.

I have considered petitioner's other contentions and find them without merit.