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Decision No. 12,847

Appeal of FREDERIC GANG from action of the Board of Education of the Syosset Central School District relating to the conduct of a school district annual meeting.

Decision No. 12,847

(December 15, 1992)

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Jerome H. Ehrlich, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a resident of respondent school district, seeks an order directing respondent to discontinue its practice of soliciting nonvoters to the polls at the time of its annual meeting. The appeal is dismissed.

Respondent, the Syosset Central School District, supplies its election inspectors with lists of district residents who are registered to vote in the school election. The inspectors are also given a list containing the names of persons registered to vote in the general election, which is supplied to them by the Nassau County Board of Elections. During the course of the election, the officials mark all the voters on the register list who have come to vote. A handwritten list of all those who have voted and whose names do not appear on the register list but do appear on the county list is also maintained. The two lists together constitute respondent's poll list as required by Education Law '2029.

Before the polls close, it has been respondent's practice to have volunteers call any person on the register list who has not appeared at the polls to remind them to vote.

On or about February 1, 1992, petitioner wrote to respondent to ask if the board intended to repeat its practice. On or about February 11, 1992, respondent indicated that it intended to do so. This appeal ensued.

Petitioner contends that respondent's practice constitutes improper electioneering and partisan activity. Petitioner seeks an order directing respondent to cease and desist these activities.

Respondent asserts that petitioner has failed to sustain his burden of proof. Further, respondent contends that because petitioner seeks to curtail respondent's future actions, he is seeking, in effect, an advisory opinion. Respondent asserts that, as such, the appeal must be dismissed.

Education Law '2031-a prohibits electioneering within one hundred feet of the polling place. It is considered electioneering when persons conducting an election display placards, buttons or flyers concerning candidates or propositions before the voters or otherwise attempt to influence the voters with respect to the election. Only the type of actions described above constitute prohibited electioneering (Appeal of Fitzpatrick, 30 Ed Dept Rep 124; Matter of Gasparini, 23 id. 25).

In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Parrish, 32 Ed Dept Rep __, decision #12825, dated October 26, 1992; Appeal of Verity, 31 Ed Dept Rep 485; Appeal of Singh, 30 id. 284). Although petitioner makes conclusory statements that electioneering and partisan activity inevitably occurs by volunteers calling voters, he provides no factual basis to support his allegation. Since there is no evidence whatsoever that the phoning was used to influence the voters, as opposed to getting people out to vote, there is no basis to find that respondent's actions constituted electioneering. Without evidence of such activities, the use of district telephones in and of itself to call registered voters does not constitute electioneering (Matter of Kruta, 21 Ed Dept Rep 494).