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Decision No. 13,414

Appeal of the ROXBURY TAXPAYERS ALLIANCE, SUSAN MOORE and BARBARA CALTABIANO from action of the Board of Education of the Roxbury Central School District relating to an annual meeting.

Decision No. 13,414

(May 11, 1995)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Jeffrey D. Honeywell and John J. Toy, Jr., Esqs., of counsel

SOBOL, Commissioner.--Petitioners appeal the issuance by the Board of Education of the Roxbury Central School District ("respondent") of absentee ballots, and challenge other matters relating to an annual meeting held on June 14, 1994. The appeal must be dismissed.

Petitioners are residents of the district and members of a taxpayers organization. On May 11, 1994, petitioner Caltabiano made several recommendations to respondent concerning the conduct of the annual meeting. The recommendations included extending voting hours, providing seating for the elderly and infirm and additional inspectors, and changing the absentee ballot form. Respondent board president promised that the recommendations would be taken under advisement. The recommendations were never implemented. Instead, respondent added a third voting booth to diminish voting delays.

Petitioners allege that respondent failed to implement their recommendations, improperly handled absentee ballots, failed to correctly advertise the annual meeting and permitted electioneering in the classroom. Respondent contends that it acted appropriately in all respects. Respondent also contends that, as a procedural matter, petitioners fail to state a claim upon which relief can be granted. Respondent further asserts that the petition is untimely.

Before reaching the merits, I will address the procedural issues. Respondent contends that because the petition is not clear and concise, it has been deprived of a meaningful opportunity to respond. The Commissioner's regulations require that the petition contain a clear and concise statement of claims showing that petitioners are entitled to relief. It must also be sufficiently clear to advise respondent of the nature of petitioners' claims against respondent and the specific act or acts complained of (8 NYCRR 275.10).

While I agree that the petition in this case is inartfully worded, I am also cognizant of the fact that petitioners appear without the benefit of counsel. Under such circumstances, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to the respondent (Appeal of Blagrove, 32 Ed Dept Rep 629; Appeal of DeGroff, et al., 31 id. 332; Application of a Child with a Handicapping Condition, 28 id. 519). In my judgment, the petition is not so deficient as to deprive respondent of the ability to respond to the allegations. Indeed, respondent has submitted a responsive and detailed answer. Therefore, I decline to dismiss the appeal for failure to state a clear claim.

Respondent also alleges that the petition is untimely because the events of which petitioners complain occurred more than 30 days prior to the date this appeal was filed. I note that the last act of which petitioners complain involves the district clerk's handling of absentee ballots in the ballot box. That action occurred at the time of the annual meeting, on June 14, 1994. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). Since this appeal was commenced on July 13, 1995, petitioners' claims regarding the actions taken on the day of the election are timely. However, the other actions of which petitioners complain -- electioneering in the classroom, notice of the annual meeting and the distribution of the absentee ballot applications -- occurred more than 30 days prior to the filing of this appeal. Accordingly, those claims must be dismissed as untimely.

The entire appeal must also be dismissed on the merits. While petitioners raise a number of issues concerning respondent's conduct, there is no basis for me to grant relief for these alleged improprieties. Petitioners contend that a teacher in respondent's district improperly electioneered in the classroom in violation of Phillips v. Maurer, 67 NY2d 672. In that decision, the Court of Appeals held that school district funds may not be used to exhort the electorate to support a particular position. The record reveals that while a classroom discussion took place regarding "contingency" budgets, there is no evidence that the teacher espoused a particular position on the budget or attempted to improperly influence the students in any way. Respondent's principal investigated this matter and found that the teacher acted appropriately. Petitioners have not demonstrated otherwise. I therefore have no basis in the record to overturn that finding.

Petitioners also allege that respondent did not publish a timely notice of the annual meeting. Education Law '2004 requires publication of four notices of an annual school district meeting within the seven-week period preceding such a meeting. The first such notice must be published at least 45 days prior to the date of the meeting. These notices shall be published in two newspapers if there are two newspapers in general circulation within the district and one newspaper if there is only one newspaper in general circulation in the district. If there are no newspapers in general circulation in a school district, the district must post such notice in at least 20 public places 45 days prior to the meeting. The record in this case indicates that respondent published four notices in two regional newspapers distributed weekly throughout respondent's district beginning on April 26 and 27, 1994. While the April 27th notice contained the misstatement that petitions for nominations of candidates to the board were to be filed by May 20, 1994 instead of the correct date of May 13, 1994, that error is de minimis. Moreover, petitioners make no showing that the incorrect date affected the election. Furthermore, I note that Education Law '2010 states that no annual meeting shall be held illegal for want of due notice unless the failure to give that notice was wilful or fraudulent. There is no evidence in the record before me that the incorrect date was anything more than a typographical error. Accordingly, I find no proof of wilfulness or fraud; respondent provided adequate notice of the annual meeting.

Petitioners also argue that respondent improperly handled the distribution of absentee ballot applications and absentee ballots. While Education Law '2018-a regulates absentee ballots for school district elections, I note that that statute is generally silent regarding the procedures by which absentee ballot applications are distributed or made available.

Petitioners first allege that respondent failed to make absentee ballot applications available on a timely basis. The record reflects that respondent's annual meeting notice clearly indicated that absentee ballot applications would be available commencing May 16th. I note that Education Law '2018-a does not specify when absentee ballot applications must be made available. While petitioners allege that the ballots were not actually available until May 23rd, they fail to prove that allegation and instead make conclusory statements that the timeframe was unreasonable. In view of the foregoing, I am constrained to reject petitioners' allegation that respondent failed to distribute absentee ballot applications on a timely basis.

Additionally, petitioner Caltabiano requested 53 absentee ballot applications and respondent's clerk required her to submit a list of the names of the individuals for whom she was seeking such applications. I note that there is no authority under Education Law '2018-a to demand a list of voters for whom one is requesting absentee ballot applications. Furthermore, while I cannot find that respondent specifically violated Education Law '2018-a, I am unpersuaded by its assertion that the cost of absentee ballot applications justified its clerk's demand for and subsequent scrutiny of a list of individuals for whom petitioner was requesting applications. The purpose of an absentee ballot is to ensure that those registered voters who are unavailable by reason of absence due to business, occupation or studies, infirmity, vacation or confinement be allowed to exercise their right to vote. The actions of respondent's clerk could have the effect of unjustifiably limiting the access of eligible voters to absentee ballots. I therefore urge respondent to examine its procedures regarding the handling and distribution of absentee ballot applications and absentee ballots to ensure full and fair elections in its district in the future.

Finally, I find that petitioners have failed to offer sufficient evidence to demonstrate that respondent's clerk did not meet his obligation under Education Law '2018-a(9) to properly transmit absentee ballots to the inspectors of the election.

I have examined the parties' remaining contentions and find them without merit.