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Decision No. 13,509

Appeal of WALLY YOUNG from action of the Board of Education of the Baldwin Union Free School District regarding a bond vote.

Decision No. 13,509

(November 11, 1995)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to set aside the voters' approval of a proposition to renovate and upgrade school district buildings and purchase and install computer equipment. The appeal must be dismissed.

On June 23, 1994, the Board of Education of the Baldwin Union Free School District ("respondent") formed a facilities and technology committee. The committee considered various proposals to renovate and improve school buildings in the district and reviewed alternative methods to finance the proposed modifications and purchases. Ultimately, the committee recommended presentation to the voters of a bond issue in the amount of $10,880,060. Between January 10, 1995 and January 26, 1995, respondent made presentations at each school in the district and visited community organizations to explain the scope and extent of the proposed bond issue and to answer questions from the community. Respondent also prepared and distributed to all households in the district an informational brochure explaining the proposed bond issue. Respondent placed similar information in each school and the public library. On February 1, 1995, the district taxpayers passed a $9.8 million dollar bond issue by a margin of 93 votes. This appeal followed.

Petitioner asserts that respondent misled district voters at the February 1, 1995 special election because the bond proposition failed to disclose the amount of the district's total bonded indebtedness. Petitioner argues that the bond proposition should have disclosed all prior outstanding bonds in addition to the proposed indebtedness, thus giving voters a clearer understanding of what the total outstanding indebtedness would be, in the event the bond issue was adopted. Petitioner further claims that respondent is somehow discriminating against some students in its distribution of the computer equipment to the classrooms. Petitioner requests that I overturn the bond vote. Respondent counters that voters were not mislead and that in any event, petitioners have failed to meet their burden of demonstrating that the election results would have been different but for the alleged misleading information presented to the voters.

In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Application of Verity, 31 Ed Dept Rep 485; Appeal of Singh, 30 id. 284). A school district election will not be set aside in the absence of proof that the alleged misconduct affected the outcome of the election (Appeal of Bach, 32 Ed Dept Rep 499; Appeal of Luening, 31 id. 534; Appeal of Pucci, 31 id. 3; Matte of Boyes, et al. v. Allen, et al., 59 Misc 2d 975, reversed 32 AD2d 990, aff'd 26 NY2d 709). Where there is a vote on a capital project and the financing thereof, such proof must contain affidavits or statements from individuals who voted in favor of the proposition that their vote would have been otherwise but for the alleged misconduct (Appeal of Bach, supra; Appeal of Hable, 30 Ed Dept Rep 73).

In this case, petitioner submits no proof that anyone who voted for the financing would have voted differently but for the alleged misleading information, i.e., the failure of respondent board to state the district's total indebtedness as a result of this bond issue. Accordingly, petitioner has not met his burden of proof, and the appeal must be dismissed.

Moreover, the record reflects that the district's total indebtedness was fully disclosed by respondent in statements it prepared for tax anticipation notes. Further, the numerous meetings respondents held at district schools and with community groups gave the voters many opportunities to ask questions about the proposed bond issue. Based upon these facts, I find no basis to conclude that respondent in any way attempted to mislead the voters.

I have reviewed petitioner's remaining claims and find them without merit.