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Decision No. 13,081

Appeal of RICHARD M. BROWER from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding the conduct of a budget vote.

Decision No. 13,081

(December 31, 1993)

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Florence T. Frazer, Esq., of


SOBOL, Commissioner.--Petitioner appeals the conduct of school district officials prior to a budget re-vote held by the Board of Education of the Hewlett-Woodmere Union Free School District ("respondent") on June 9, 1993. The appeal must be dismissed.

Petitioner is a resident of respondent district. Respondent's budget was initially rejected by the voters on May 5, 1993 by a vote of 1776 to 1327. Respondent board met on May 13 and May 19, 1993 and decided to hold a special district election to vote on a revised school budget. The president of respondent board sent residents two letters concerning the revised budget and the impact of austerity on respondent's programs. A second vote was held on June 9, 1993 with 2311 votes in favor and 1638 opposed. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on August 18, 1993.

Petitioner alleges that the materials sent by respondent were improper and partisan and seeks an order directing the board president to refund money spent on the letters to the school district. Petitioner also seeks a nullification of the June budget vote.

Respondent contends that petitioner fails to set forth facts sufficient to state a claim upon which relief may be granted. Respondent also contends that it did not engage in improper electioneering, and if any violations occurred, they were technical in nature and do not require that the election be overturned.

I will first address the procedural issue. Commissioner's regulations (8 NYCRR 275.10) provide that a petition:

shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of.

In this case, the allegations are specific enough to enable respondent to address them adequately and petitioner has made a clear statement of the relief he requests, i.e., nullification of the June budget vote. A liberal interpretation of '275.10 is appropriate where, as here, petitioner is not represented by counsel and there is no prejudice to the opposing party (Appeal of Blagrove, 32 Ed Dept Rep 629; Appeal of DeGroff, 31 id. 332). I note that respondent does not allege that it has been prejudiced by the petition and has submitted a detailed answer to it. Respondent's objection is, therefore, rejected.

The appeal must, however, be dismissed on the merits. The Commissioner of Education will not set aside the results of a school district vote in the absence of evidence of the probability that the alleged irregularities affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Brower, 29 Ed Dept Rep 145), are so pervasive in nature as to vitiate the electoral process (Matter of Gilbert, 20 Ed Dept Rep 174), or that the irregularities demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the election provisions of the Education Law (Matter of Levine, 24 Ed Dept Rep 172, aff'd subnom; Capobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 112 AD 2d 640). To warrant setting aside an election, the improprieties alleged must be substantial and not merely technical in nature (Appeal of Taylor, 31 Ed Dept Rep 46). Petitioner has the burden of establishing the facts upon which he seeks relief (Appeal of Pickreign, 28 Ed Dept Rep 163) and has not met his burden of proof here.

Petitioner's main contention appears to be that the materials sent on two occasions by respondent board president to voters constituted impermissible electioneering. Although a board of education may provide informational materials to the voters concerning a proposed budget or proposition (Education Law '1716), the Court of Appeals held in Phillips v. Maurer, 67 NY2d 672, 499 NYS2d 675, that school district funds may not be used to exhort the electorate to support a particular position. The letter dated May 1993, which was sent to all district residents, discussed the recently defeated budget, the options to the district and the effect of an austerity budget. It contained revised budget figures and urged residents to vote on June 9th. The letter stated that under austerity, no transportation would be provided. Petitioner correctly notes that this is a false statement, since statutorily mandated transportation is an ordinary contingent expense (Education Law '3635). Respondent counters that since approximately all but 10 students in the district receive expanded transportation services that are not statutorily mandated, transportation would essentially be eliminated under austerity for the majority of the student population. While I find that respondent did misrepresent that transportation would not be funded under an austerity budget, this error alone is not sufficient to overturn the budget vote (Appeal of Vecchio, 30 Ed Dept Rep 126, aff'd sub nom; Vecchio v New York State Dept. of Educ., et al., 189 AD2d 961).

More troubling is the second communication to parents that was sent home with students on June 8, 1993, the day before the budget vote. Although respondent board's president stated therein that he could not urge a "yes" vote and use school district funds for that purpose, the tone of the letter is meant to solicit votes in favor of the budget. It urged parents to consider the results of austerity and vote on June 9th. While I do not find that the letter was technically partisan and in violation of Phillips v. Maurer, supra, it is dangerously close. While I realize that the budget issue was hotly contested in respondent's district, including disturbing allegations of the distribution of anti-Semitic materials urging voters to defeat the budget, respondent is admonished to be more careful and objective in its communications with district residents in the future.

In any event, petitioner has not submitted any evidence to demonstrate that the results of the vote might have been otherwise, but for the content of the letters in question.