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Decision No. 13,307

Appeal of CAROLE SWITZER, on behalf of JOSEPH PAUL SWITZER, from action of the Board of Education of the Frontier Central School District and Charles L. Little, Superintendent, relating to a special district meeting.

Decision No. 13,307

(December 15, 1994)

Anthony M. Miranda, Esq., attorney for petitioner

Shaw & Shaw, P.C., attorneys for respondents, James M. Shaw, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals certain actions taken by the Board of Education of the Frontier Central School District ("respondent board") and its superintendent, Charles L. Little, prior to a special district meeting. The appeal must be dismissed.

For some time prior to the commencement of this appeal, respondent board has owned a building known as the Woodlawn Elementary School. That building is no longer used as a school building. On or about May 5, 1993, respondent received an offer to purchase the school for $250,000. The district also received a separate offer to purchase an adjoining 3.5 acre parcel of land from a local fire department. On June 1, 1993, respondent board voted to accept the purchase offer for the school building.

Thereafter, petitioner, a member of the Woodlawn Beach Taxpayers Association, Inc., and others, circulated petitions pursuant to Education Law '1804(6)(c) to require that the question of the sale of the property be submitted to the voters of the district. On or about July 14, 1993, Lynn M. Wilson and the Woodlawn Beach Taxpayers Association, Inc. commenced a proceeding in Supreme Court, Erie County against respondent board. By order entered September 2, 1993, the Supreme Court compelled respondent to conduct such a special district meeting. This special district meeting was scheduled for January 26, 1994.

During the fall of 1993, respondent published several newsletters which provided more details about the proposed sale. On November 22, 1993, respondent Little wrote a letter on school district stationery to the United Council of Hamburg Taxpayers' Association in which he offered to meet with that group and discuss the upcoming vote.

On November 30, 1993, an order to show cause was issued in the Supreme Court proceeding seeking an order directing the board and superintendent to refrain from urging voters to vote in favor of the sale and for certain other relief. The record before me indicates that the Supreme Court refused to grant such relief. Respondent also asserts and petitioner acknowledges that the court appears to have suggested that petitioners Wilson and the Woodlawn Beach Taxpayers Association, Inc. should have appealed to the Commissioner of Education, rather than to the court. Petitioner claims that no final order had been entered in the Supreme Court proceeding as of the commencement of this appeal on February 24, 1994, and there is no such order in the record before me.

At the special district meeting held on January 26, 1994, the voters refused to authorize the sale of the school building. Petitioner does not challenge the result of the election. This appeal was commenced on February 24, 1994.

Petitioner contends that the school newsletters, the superintendent's letter and various other materials were improperly prepared at district expense to sway the voters of the district to approve the sale of the Woodlawn Elementary School. Petitioner requests that I order respondents to cease and desist in the future from using district funds in such a manner, that I admonish the superintendent for using school time to write letters soliciting speaking engagements and that I direct "the responsible parties" to reimburse the district for any improper expenditures of funds or property.

Respondent denies that the materials were in any respect improper. Respondent asserts a substantial number of procedural defenses, including untimeliness and mootness.

The appeal is, however, timely. Although the latest newsletter complained of by petitioner bears the date December 1993, the petition contains the following allegation: "The conduct of the Board and Superintendent complained of herein continued up to the election held on January 26, 1994." Respondents' answer does not deny this statement. Normally, where a petitioner complains only of pre-election activities and does not challenge the result of the election itself, an appeal must be instituted within thirty days of the last act complained of (Matter of Scanio, 22 Ed Dept Rep 315). However, under the circumstances of this appeal, where respondents do not deny that their activities continued until January 26, 1994, an appeal commenced on February 24, is timely.

I have carefully examined the newsletters and other materials which are the subject of this appeal. These materials are generally factual in nature, although they do present the potential sale of the school building in a somewhat favorable light. They do not, however, violate the standard established in Matter of Phillips v. Maurer (67 NY2d 672).

In that case, the Court of Appeals stated that a board of education may educate or inform the electorate on an issue, but may not disseminate, at taxpayers' expense, information which is patently designed to exhort the voters to cast their ballots in support of a particular position advocated by the board. I find that the information challenged by petitioner is a proper attempt to educate the public. Unlike the advertisement challenged in Matter of Phillips v. Maurer, respondent board has not urged voters to vote in a particular way on the issue of selling the school. Nor do I find anything improper in the superintendent's offer to meet with a taxpayers' group to discuss the sale of the school.

I have considered the parties' other arguments and found them without merit.