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Decision No. 13,123

Appeal of HERMAN H. MOESSINGER from action of the Board of Education of the Iroquois Central School District regarding the conduct of an election.

Decision No. 13,123

(March 3, 1994)

Hodgson, Russ, Andrews, Woods & Goodyear, Esqs., attorneys for respondent, Karl W. Kristoff and Karen S. Martell, Esqs., of counsel

SOBOL, Commissioner.--Petitioner appeals the conduct of certain school district officials in connection with an annual election held by the Board of Education of the Iroquois Central School District ("respondent") on May 25, 1993. The appeal must be dismissed.

Petitioner is a member of respondent board. On May 19, 1993, respondent's superintendent sent a letter to senior citizens stating that the proposed budget would reduce taxes, reduce budget appropriations and improve the educational program for children. The letter also listed the date, time and location of the vote and election. Also prior to the vote, an Iroquois parent organization prepared a flyer to remind high school parents of the date, time and location of the vote. The association used respondent's postage machine to mail the flyers. The cost of postage, however, was reimbursed to the district. Additionally, respondent was aware, prior to the vote, that 5 of 365 employees in one of its buildings housing fourth and fifth graders were wearing campaign buttons.

On May 25, 1993, the budget passed by 2,211 to 910. Board members Kunick and Keubler were elected by a margin of 508 and 584 votes, respectively. This appeal followed.

Petitioner contends that school district funds were used to exhort the electorate to pass the budget and elect two specific candidates to the board of education in violation of the principles set forth in Phillips v. Maurer, 67 NY2d 672. Respondent maintains that the appeal should be dismissed as untimely pursuant to 8 NYCRR 275.26 and for failure to join board members Kunick and Keubler as necessary parties. Respondent also contends that no district funds were used to exhort the electorate.

I will first address the procedural issues. Commissioner's Regulations require that an appeal be brought within thirty days after the making of the decision or the performance of the act complained of, provided that the Commissioner may excuse a delay in commencing an appeal for good cause shown (8 NYCRR 275.16). Petitioner's allegations involve behavior that occurred prior to the election on May 25, 1993. On June 25, 1993, petitioner wrote to me and was advised that he could challenge respondent's actions by filing an appeal under Education Law '310. On August 19, 1993, petitioner again wrote, seeking to have his June letter considered an appeal. On September 2, 1993, my Office of Counsel sent petitioner information about the procedures for filing of an appeal. Petitioner nevertheless failed to commence this appeal until October 24, 1993, more than five months from the date of the election. Petitioner now appears to claim that his delay should be excused because he did not understand the appeals procedure. Except in unusual circumstances, however, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Application of Johnson, 32 Ed Dept Rep 458; Appeal of Pitney Bowes, 31 id. 290; Appeal of Casid, 30 id. 332). I find no unusual circumstances exist in this case. Accordingly, this appeal must be dismissed as untimely.

Mr. Kunick and Mr. Keubler have not been joined as parties in this appeal, even though petitioner seeks to declare their election null and void. Because a decision on the merits of this claim would involve the rights of Mr. Kunick and Mr. Keubler as board members, they are necessary parties to this proceeding (Appeal of Reed, et al., 33 Ed Dept Rep 216; Appeal of Kalinowski, 32 id. 476; Appeal of Ferris, 30 id. 444; Appeal of Healy, 29 id. 391). Therefore, that portion of the appeal which seeks to overturn their election must be dismissed for failure to join them as necessary parties.

Even if this appeal were not dismissed on procedural grounds it would be dismissed on the merits. A board of education may provide informational material to the voters concerning a proposed budget or proposition (Education Law '1716). The Court of Appeals held in Phillips v Maurer, 67 NY2d 672, however, that school district funds may not be used to exhort the electorate to support a particular position in an election. The record in this case contains only two documents that may have had some tie to respondent. Those are the superintendent's letter to senior citizens and the letter mailed by the parents' group using respondent's postage meter. The superintendent's letter to senior citizens, however, does not specifically encourage the voters to vote yes on the budget, and, therefore, is within the "letter of the law". However, I encourage respondent to take care in the future to ensure that such letters are strictly factual and, therefore, less likely to invite criticism.

Regarding the parents' association use of respondent's postage meter to mail flyers, since the school district's costs were reimbursed, technically no school district funds were used. However, again, even though the actions of respondent are within the bounds of the decision in Phillips v. Maurer, supra, I encourage respondent, in the future, to avoid even the appearance of impropriety.

Next, I find reasonable respondent's decision to allow employees to wear buttons encouraging the election of specific candidates. It is well established that public employees have a right of free speech which is entitled to First Amendment protection when the speech at issue is a matter of public concern (Connick v Myers 461 U.S. 138; Pickering v. Board of Education, 391 U.S. 563). The election of candidates is a matter of public concern and, therefore, the employees' speech is protected (Ware v. Unified School District No. 492, 881 F.2d 906 (10th Cir. 1989); Stewart v. Baldwin County Board of Education, 908 F.2d 1499 (11th Cir. 1990); James v. BOE Central District No. 1 of Towns of Addison, 461 F.2d 566 (2nd Cir. 1972)). Accordingly, given the free speech rights of public employees, the small number of employees wearing buttons and, therefore, the minimal likelihood of disruption, I find respondent's actions in allowing the employees to wear campaign buttons to be reasonable.

Finally, petitioner's assertion that voters were misled and would have voted differently but for the information disseminated by respondent, the parents' group and the buttons, is without foundation. Petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR 275.20; Appeal of Pickreign, 28 Ed Dept Rep 163). 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 Donnelly, 33 Ed Dept Rep ___; Appeal No. 13079, dated December 31, 1993; Appeal of Brower, 29 Ed Dept Rep 145). Petitioner does not offer an affidavit of even one voter asserting that he or she would have voted differently but for the dissemination of the challenged information. Rather, his allegations are merely speculative and conclusory and do not warrant overturning the election (Appeal of Pickreign, supra; Appeal of Donnelly, supra; Appeal of Ben-Reuben, et al., 33 Ed Dept Rep ___; Appeal No. 13055, dated November 24, 1993).