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Decision No. 13,276

Appeal of EDWARD SOWINSKI from action of the Board of Education of the Farmingdale Union Free School District concerning conduct of a school election.

Decision No. 13,276

(October 26, 1994)

Guercio & Guercio, Esqs., attorneys for respondent, Richard J. Guercio, Esq., of counsel

SOBOL, Commissioner.--Petitioner objects to the practice by respondent Board of Education of the Farmingdale Union Free School District of scheduling an "All-Curriculum Meeting," which includes a concert by several school musical organizations, on the evening of the annual election and budget vote. The appeal must be dismissed.

Petitioner alleges that it has been the school district's recent practice to schedule a school concert at the Weldon E. Howitt School on the same day that elections are held. The record indicates that the district followed this procedure during the 1992-1993 school year, and that petitioner objected to that practice at the January 9, 1993 school board meeting.

Prior to the 1993-1994 school year, respondent published an activities calendar and reference guide which contained no mention of the concert to which petitioner objects nor of the election and budget vote. On September 8, 1993, the board voted to establish "All-Curriculum Board of Education meetings during the 1993-94 school year" for October 20, 1993, December 15, 1993, January 26, 1994 and an "additional All-Curriculum Meeting date to be established on the day of the school budget vote."

At a meeting held January 12, 1994, respondent board adopted a resolution to hold the annual election and budget vote on June 8, 1994. In doing so, the board also established the date for the fourth All-Curriculum Meeting.

On April 13, 1994, petitioner appeared at a regular meeting of the board, stated his dissatisfaction with having the concert on the same date as the election and budget vote and handed an envelope to the district clerk which contained a copy of the petition in this appeal. On the following day, April 14, service on the district clerk was properly made by a person other than petitioner. Petitioner's request for a stay rescheduling the concert and delaying the vote pending the outcome of this appeal was denied on May 6, 1994.

Petitioner claims that the concert to which he objects, which is a portion of the fourth All-Curriculum Meeting, is held in the same building as the election and budget vote, in an auditorium which is less than 100 feet from the voting area. Petitioner contends that this is an improper practice, is an abuse of discretion on the part of the school board and may result in impermissible electioneering in violation of Education Law '2031-a.

Respondent denies that holding a concert while the polls are open is in any way improper or an abuse of discretion. Respondent further claims that the appeal is untimely, and that the petition fails to state a cause of action.

As a threshold matter, I find that the appeal was timely commenced. Pursuant to 8 NYCRR '275.16, an appeal "must be instituted within 30 days from the making of the decision or the performance of the act complained of." It is clear that petitioner objects to the actual practice of conducting a concert at the same time the vote is conducted. Even though the decision to conduct the concert was made on January 12, 1994, respondent board could have changed its mind at any time. In any event, the appeal was commenced well in advance of the concert itself. To say that under these circumstances the appeal was untimely would be unreasonable. An analogous situation occurs when a teaching position is abolished. The time within which to take an appeal in such cases begins on the effective date of termination, not on the earlier date when the board voted to abolish the position effective some future date (see, e.g., Appeal of Chaney, 33 Ed Dept Rep 12; Appeal of Bales, 32 id. 559; Appeal of Berowski, 28 id. 53).

I disagree with petitioner's argument that respondent's practice of holding a concert as part of the fourth All-Curriculum meeting while the polls are open amounts to electioneering in violation of Education Law '2031-a. The petition states that the simultaneous conduct of the concert and election "may result in impermissible electioneering in violation of Education Law Section 203-A[sic]." Petitioner sets forth no proof that respondent has allowed any electioneering to be conducted during past concerts or that it has allowed any posters or placards on behalf of or in opposition to any candidate or issue that was voted upon. Absent such proof, I am unable to say that the mere holding of a concert is perse improper.

Petitioner's other contention is that notice of the election-night concert was only given to students and the families of students attending the district's schools. Petitioner seems to suggest by this allegation that by targeting only some concertgoers, the district was electioneering. However, petitioner makes this allegation upon information and belief, and fails to support his claim. Respondent denies petitioner's claim and places in the record a copy of a district publication showing a listing of district events for May and June, including the June 8 All-Curriculum meeting, which was mailed to all residences within the district.

While petitioner has failed to carry his burden of proof that only students and the families of students attending district schools were given notice of the concert, I remind respondent that previous decisions of the Commissioner have warned against "targeting" of a selective list of potential voters who might be more inclined to support the budget than other groups (see, e.g., Appeal of Pucci, 31 Ed Dept Rep 3; Appeal of Bayly and Rogers, 30 id. 442; Appeal of Tortorello and Bartnik, 29 id. 306; Appeal of San Remo Civic Association, Inc., 28 id. 175; Appeal of Blake, 27 id. 89; Appeal of Walker, 23 id. 280; Appeal of Canham, 19 id. 254). If, indeed, special notice of the concert was sent home with public school students or in some other way calculated to reach only the parents of public school students, there could be an appearance of improper partisan activity. I caution respondent board that, if it chooses to continue the practice of conducting a concert on the same evening as the date of the election and budget vote, notice of the concert should be given to all district residents in the same manner.

I have considered the other contentions of the parties and found them without merit.