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Decision No. 13,030

Appeal of PATRICIA CARROLL from action of the Board of Education of the Bayport-Blue Point Union Free School District regarding the conduct of a school district election and budget vote.

Decision No. 13,030

(October 27, 1993)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner challenges certain conduct of school district officials in connection with an election and budget vote held by the Board of Education of the Bayport-Blue Point Union Free School District. The appeal is dismissed.

Ms. Dana Teri, who is active in the local PTA, is a per diem clerical employee of respondent. While attending one or more PTA meetings held at one or more district schools, Ms. Teri approached individuals either before or after the meeting and obtained signatures on a nominating petition in support of a particular candidate. Petitioner contends that such conduct was improper and requests an order declaring null and void the nominating petition in question.

Petitioner's contention is meritless. In Matter of Phillips v. Maurer, 67 NY2d 672, the Court of Appeals held that school district funds may not be used to exhort the electorate to support a particular position. Moreover, it is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election (Appeal of Weaver, 28 Ed Dept Rep 183). However, individual board members and employees are entitled to express their views about issues concerning the district and engage in partisan activity, provided school district funds are not used (Appeal of Weaver, supra). In the instant matter, there is no evidence that the board itself was engaged in partisan activities, or that it supported Ms. Teri's individual activities on behalf of a particular candidate. Nor is there any evidence that district funds were used. Accordingly, there is no basis to conclude that Ms. Teri's activities were improper.

Petitioner also objects to two documents sent home with students, one of which was prepared by district officials. After having adopted austerity budgets for three consecutive years, respondent directed its superintendent to prepare a budget calling for no tax increases and to determine which programs would have to be eliminated to achieve that result. In response to that directive, the superintendent prepared and distributed to the residents a questionnaire soliciting their views on how to develop such a budget, and what programs should, if possible, be restored. The document, as prepared by the district, was neutral and did not advance a particular viewpoint. Petitioner maintains, however, that the questionnaire was altered before it was sent to school district residents. In support of her contention, petitioner has submitted a copy of another questionnaire, pre-completed for potential respondents. It states that all programs should either be maintained or restored and that taxes should be increased to fund those programs. As noted by petitioner, an individual wishing to submit the questionnaire as pre-completed need only sign and return it.

While it would clearly be improper for school officials to prepare a document which advocates the position that school taxes should be raised to restore previously eliminated programs (seeMatter of Phillips v. Maurer, supra), petitioner introduces no proof that the questionnaire was altered by school officials or personnel or that respondent knew of or authorized such alteration. Indeed, respondent expressly denies such knowledge or authorization. Nevertheless, the alteration of a district document to espouse a partisan position is unacceptable, and respondent is admonished to exercise the utmost diligence to ensure that district documents are not so altered in the future.

Petitioner also objects to a PTA budget flyer. Petitioner maintains that the flyer urges passage of the district budget and was improperly distributed by district personnel to the students. Respondent concedes that the flyer, prepared by the PTA, was sent home with students, just as other PTA material is distributed. However, a review of the flyer indicates that it contains only factual information regarding the effects of an austerity budget and reminds the public of registration dates. It does not contain a request to support the budget or to vote for a particular outcome. A board of education may distribute factual information which describes the impact of an austerity budget (Appeal of Ruiz, 32 Ed Dept Rep 107; Appeal of Loriz, 27 id. 376). As stated in Matter of Lewis, 13 Ed Dept Rep 137:

It has been consistently held that a board of education has not only the right but the duty to present facts and information to the electorate to enable them to vote intelligently. ... While petitioner contends that respondents engaged in intimidation and `scare' tactics, it is a fact that a contingency budget would necessitate the curtailment or elimination of numerous services. ... `While the consequences of an austerity budget may be unpleasant, respondent can hardly be faulted for informing the public of these consequences' (citation omitted).

Therefore, there is no basis for concluding that the distribution of the budget flyer in dispute was improper.