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Decision No. 12,912

Appeal of FRANK BOSCO, et al. from actions of the Board of Education of the Irvington Union Free School District regarding a bond vote.

Decision No. 12,912

(April 12, 1993)

Lovett & Gould, Esqs., attorneys for petitioners, Jonathan Lovett, Esq., of counsel

Plunkett & Jaffe, P.C., attorneys for respondent, Phyllis S. Jaffe and Jamie H. Cotel, Esqs., of counsel

SOBOL, Commissioner.--Petitioners seek to set aside the results of an October 21, 1992 bond vote which approved propositions to renovate three school buildings. The appeal must be dismissed.

On October 21, 1992 respondent submitted two propositions to the voters. Proposition no. 1 was for the renovation of three school buildings for $5,027,000. Proposition no. 2 involved the construction of an addition to an elementary school for $3,300,000. Election results on the night of the election indicated that proposition no. 1 passed by a margin of 129 votes and proposition no. 2 passed by a margin of 27 votes. However, 78 paper ballots were cast by individuals not registered with the school district. Because of the lateness of the hour, it was not possible for district officials to check with the Westchester County Board of Elections to determine if those 78 ballots were cast by qualified voters. The ballots in question were sent to the Board of Elections, which confirmed that 41 of the 78 voters involved were registered to vote. On October 30, 1991 those 41 votes were counted in public. Revised vote totals showed that proposition no. 1 had passed by 151 votes and proposition no. 2 had passed by 49 votes.

The County Board of Elections informed respondent that because of its need to prepare for the pending presidential election, it could spend no more time trying to verify the remaining 37 ballots. In any event, because the remaining 37 ballots could not affect the outcome of the referendum for either proposition, respondent announced on October 30th that both propositions had been approved.

On November 18, 1992, respondent published a legal notice of respondent's resolution authorizing the issuance of bonds in the amount of $8,327,000. In accordance with Local Finance Law '80.00 etseq., the notice stated that any challenge to the issuance of the bonds must be made within 20 days after the publication of the notice. Petitioners commenced this appeal on January 22, 1993.

As a preliminary procedural matter, petitioners seek to submit additional exhibits and raise new issues in their reply which were not included in the petition. Sections 275.3 and 275.14 of the Regulations of the Commissioner of Education set forth the scope of a reply in an appeal pursuant to Education Law '310, and allow a response to affirmative defenses and new material raised in an answer. However, the reply does not provide an opportunity to raise new grounds for relief (Appeal of Alexandreena D., 30 Ed Dept Rep 203; Appeal of Santicola, 29 id. 213). Moreover, a reply is not meant to buttress allegations in the petition or to add belatedly assertions which should have been included therein (Appeal of Brousseau, 31 Ed Dept Rep 155; Appeal of Barbara P., et ano., 30 id. 198; Appeal of Pronin, 27 id. 203). Therefore, those portions of the reply that raise new issues and the exhibits that relate to them will not be considered here.

Counsel for petitioners has also applied for permission to submit late exhibits pursuant to 8 NYCRR '276.5. The additional exhibits could have been submitted in a timely manner with the petition, but were not. I do not accept petitioners contention that they did not have sufficient time to accumulate the items in question and, therefore, deny their request that the exhibits be made part of the record. Thus, they will not be considered in my decision on the appeal.

Respondent maintains that this appeal must be dismissed as untimely. An appeal must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). The vote on the board resolutions occurred on October 21, 1992. The resolutions were declared adopted on October 30, 1992. This appeal was not initiated until January 22, 1993, 92 days after the referendum was held and 83 days after the resolutions were declared adopted. To explain the delay, petitioner offers a number of excuses including bad weather, inadequate press coverage of school district affairs, fear of retaliation by school officials, allegedly false representations made by district officials and inability to obtain allegedly pertinent information from relevant taxing authorities. In light of the fact that the offered excuses are either irrelevant or not supported by the record, they are rejected. The appeal is therefore dismissed as untimely.

In addition, on November 18, 1992, respondent published a notice of estoppel pursuant to Local Finance Law ''80.00, etseq. That notice of estoppel mandated that the validity of the bonds to be issued as a result of the referendum approved by the voters had to be challenged within 20 days after the date of such publication.

The 20 day limitation referenced above is set forth in Local Finance Law '82.00 which states:

After publication of a resolution, summary of such resolution or certificate together with such a notice, the validity of the obligations authorized thereby may be contested only if:

1. Such obligations were authorized for an object or purpose for which the municipality, school district or district corporation is not authorized to expend money, or

2. The provisions of law which should have been complied with at the date of the publication of such resolution, summary of such resolution or certificate were not substantially complied with, and an action, suit or proceeding contesting such validity is commenced within twenty days after such publication, or

3. Such obligations were authorized in violation of the provisions of the constitution.

Since petitioners did not commence this appeal until January 22, 1993, clearly they have not met the 20-day limitation imposed by the Local Finance Law. Petitioners maintain that their failure in this regard is immaterial because the 20-day requirement does not apply to appeals to the Commissioner of Education. That contention has no merit. In addressing the applicability of Local Finance Law ''80.00, etseq., it was stated in Matter of Maxon, 76 St Dept Rep 53, 54:

While the appellants insist that said sections have no application to appeals to the Commissioner of Education, I do not so construe this statute. The Commissioner has exclusive jurisdiction (Education Law '2037) to determine disputes concerning the validity of any district meeting or election, and if such sections of the Local Finance Law have no application to appeals to the Commissioner of Education, the effectiveness of the section would quite evidently be completely nullified. In any event sections 80.00 et seq. of the Local Finance Law refer to an action, suit or proceeding and it is quite clear that an appeal to the Commissioner of Education comes squarely within this category. (emphasis added)

Since petitioners failed to contest the issuance of bonds within 20 days from the publication of the bond resolution, this appeal should be dismissed as untimely on that basis as well.

The appeal must also be dismissed on the merits. 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 Bach, 32 Ed Dept Rep 273; Appeal of Verity, 31 id. 485; Appeal of Singh, 30 id. 284). In addition, to invalidate the results of a school district election, petitioners must establish the existence of an irregularity in the process of the election and that the irregularity probably affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990; aff'd 26 NY2d 709; Appeal of Weaver, 28 Ed Dept Rep 183; Appeal of Paige, 26 id. 247).

Petitioners maintain that respondent deliberately withheld, until after the bond referendum, information from the public concerning the settlement of several tax certiorari proceedings, which resulted in the district providing tax refunds to a number of property owners. Petitioners further maintain that if those settlements and the amount of the tax refunds had been known, the results of the election would have been different. Despite petitioners' contentions, the record indicates that as respondent became aware of the amount of tax refunds required by court settlements of tax certiorari proceedings, those amounts were made known to the public. The district budget presented to the voters in May 1992 set forth a substantial sum that was being budgeted for tax certiorari settlements. Moreover, approximately one month before the October 21, 1992 bond referendum, respondent sent a newsletter to district residents specifically stating that the district was facing more tax certiorari settlements involving "hundreds of thousands of dollars." Consequently, petitioners' contention that respondent concealed information concerning the tax certiorari proceedings and their effect on the finances of the district is without merit.

In addition, most of the affidavits submitted by petitioners on this issue are from individuals who did not vote in the October 21 referendum, but who state they would have voted against the bond resolutions if they had known of the liability the district faced because of the tax certiorari settlements. The remaining affidavits are from individuals who voted for one or both of the bond resolutions but state they would have also voted against the resolutions if they had known of the settlements. The makers of those affidavits do not state that they were mislead by the district on this issue, only that they were unaware of the tax certiorari proceedings and settlements. The lack of knowledge of those individuals is not a basis for overturning the results of the vote. Moreover, individuals who did not bother to vote at an election have no basis for complaining about the results of that election.

Petitioners maintain that the bond referendum must be annulled, citing the distribution of several flyers urging passage of the bond resolutions. While a board of education has a right to present informational material to the voters concerning a proposed annual budget or propositions (Education Law '1716) and individual board members are entitled to express their views about issues concerning the district (Appeal of Weaver, supra), the Court of Appeals has held in Matter of Phillips v. Maurer, 67 NY2d 672, that school district funds may not be used to exhort the electorate to support a particular position. The campaign flyers in question clearly urge passage of the bond resolutions. However, the record shows that they were prepared and distributed by a private citizen. There is no indication that any school district funds were expended in either the preparation or distribution of those items. Accordingly, there is no basis to support petitioners' request that the adoption of the bond resolution be overturned. Nor is petitioners challenge to the accuracy of some of the information contained in the privately issued campaign literature a basis for annulling the results of the referendum.

I have reviewed petitioners' other contentions and find them without merit.