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Decision No. 13,375

Appeal of DONNA ANN MARTINO-KRAFT from action of the Board of Education of the Lindenhurst Union Free School District regarding distribution of budget information.

Decision No. 13,375

(March 15, 1995)

Cahn, Wishod & Lamb, attorneys for respondent, Joel M. Markowitz, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges the distribution of a flyer containing information about the school district budget. The appeal must be dismissed.

While the papers submitted by petitioner are not clear, it appears that on September 26, 1994 the Lindenhurst Parent Teachers Association ("PTA") distributed a flyer concerning a budget vote scheduled for two days later, September 28, 1994. Petitioner contends that respondent improperly allowed school district facilities to be used in the distribution of that flyer, which allegedly supported passage of the budget. Respondent denies that allegation.

Based on the facts presented by petitioner, the appeal must be dismissed. 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:

... 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' (citations omitted).

The record indicates that respondent was operating under a contingency budget. A review of the flyer at issue indicates that it contains only factual information identifying items contained in the proposed budget. Specifically, the flyer notes that funds were included in the budget to restore programs and staff previously eliminated, pay for costs incurred in prior years, increase transportation to students and fund extra-curricular activities. The flyer also urges residents to vote and informs them of the time and places where ballots could be cast. It does not contain a request to support the budget or vote for a particular outcome. Therefore, there is no basis to conclude that the distribution of the flyer was improper.

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 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).