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Decision No. 13,353

Appeal of WILLIAM A. GAGE from action of the Board of Education of the Granville Central School District and Charles Molloy, Superintendent, regarding the conduct of a budget vote.

Decision No. 13,353

(February 6, 1995)

Judge & Duffy, Esqs., attorneys for respondent, Monica A. Duffy, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges the results of a budget vote held by the Board of Education of the Granville Central School District ("respondent board"). The appeal must be dismissed.

On June 29, 1994, the voters approved a proposed budget for the 1994-95 school year for respondent board's district by a vote of 570 to 519. Petitioner contends that the results of the vote should be annulled because the results were "tainted" by the distribution through students of a PTA flyer. Respondent concedes that the flyer, prepared by the PTA, was sent home with students, just as other PTA material is distributed.

While a board of education may not use school district funds to exhort the electorate to support a particular position in an election (Phillips v. Maurer, 67 NY2d 672), it may distribute factual information which describes the impact of an austerity budget (Appeal of Carroll, 33 Ed Dept Rep 219; Appeal of Ruiz, 32 id. 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).

A review of the flyer in question indicates that it contains only factual information regarding the effects of an austerity budget. Specifically, the flyer notes that under an austerity budget, transportation for students would be limited, no new equipment could be purchased and field trips and interscholastic programs would not be funded. The flyer also urges "all to exercise their right to vote." It does not contain a request to support the budget or to vote for a particular outcome. Therefore, there is no basis for concluding that the distribution of the budget flyer is a basis for overturning the election.

Petitioner also contends, in a conclusory manner, that respondent may not use its facilities to distribute a flyer prepared by the PTA. I reject that contention. Article VIII '1 of the State Constitution provides in part:

No ... school district shall give or loan any money or property to or in aid of any individual, or private corporation ....

The Commissioner of Education has consistently held that the provisions of Article VIII '1 prohibit the use of school premises or personnel by a private entity unless the activity has a school purpose (Appeal of Erdberg, et al., 26 Ed Dept Rep 464; Matter of Toftegaard, 23 id. 405; Matter of Puls, 17 id. 430; Matter of Countryman, 1 id. 538). While school resources were used to distribute the flyer, that activity clearly had a legitimate school purpose -- providing the electorate with factual information. Accordingly, the use of school resources for the flyer's distribution was proper. Moreover, PTA's may use school district resources to communicate factual and nonpartisan information (Appeal of Allen, 32 Ed Dept Rep 69). Since the appeal is dismissed, it is unnecessary to address the other defenses raised by respondent.