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Decision No. 13,529

Application of EDWARD CIFFONE, EDWARD DONOVAN, and GILBERT KAUFMANN, for removal of Barbara Diehl, Elaine McGuire, John J. Amato, Louise M. Ellis, Thomas J. Jordan, Kathleen Tully, and David S. Steinmetz, as members of the Board of Education of the Yorktown Central School District and against the Board of Education of the Yorktown Central School District for election irregularities.

Decision No. 13,529

(January 12, 1996)

David O. Wright, Esq., attorney for petitioners

Plunkett & Jaffe, P.C., attorneys for respondent, Phyllis S. Jaffe, Esq., of counsel

MILLS, Commissioner.--Petitioners seek the removal of the members of the Board of Education of the Yorktown Central School District ("respondent") and the voiding of a May 11, 1994 election for alleged election irregularities. The application must be denied and the appeal must be dismissed.

On May 12, 1993, the voters of respondent district approved a budget requiring a tax levy of $24,421,500. Respondent district lies within the Towns of Yorktown, Cortlandt and New Castle. Respondent sent tax warrants to the town supervisors of Yorktown and Cortlandt for $24,421,500. Respondent sent a tax warrant to the town supervisor of New Castle for $23,421,500, one million dollars short of the correct amount. The Town of New Castle prepared the apportionment of the taxes for all three towns based upon the erroneous tax warrant. Consequently, the Town of Yorktown issued its tax levy for one million dollars less than the town needed.

The Westchester County Tax Law requires the towns located within a school district to provide the district with the full amount of the district's tax warrant whether or not the towns are able to collect the full amount of the school taxes due. The Towns of Yorktown and Cortlandt provided respondent with the full amount of their share of the tax warrant based upon the $24,421,500 figure. The Town of Yorktown had to borrow nearly one million dollars to pay respondent district, because its tax levy was insufficient.

On November 16, 1993, the supervisor for the Town of Yorktown and the superintendent, assistant superintendent and school board president met to discuss the error. On January 6, 1994, respondent's superintendent sent procedures and protocols to the town supervisor of Yorktown with a letter indicating that he wished to send a joint press release from the town and respondent to advise residents of the tax collection error. This joint press release was not sent and respondent board of education did not take any further action.

On May 11, 1994, the district's proposed budget was defeated and the two candidates receiving the highest number of votes were elected to the board of education with the following results:

Diehl - 1745

Steinmetz - 1339

Ciffone - 1033

In anticipation of the May 11, 1994 and subsequent June 21, 1994 budget votes, respondents sent mailings to taxpayers estimating the anticipated tax increase to be 6.81%.

In September 1994, the supervisor for the Town of Yorktown sent out its 1994-95 tax bills and added to the warrant "omitted taxes 93/94...$1,000,000". The additional one million dollars and a refund ordered by a court in a certiorari proceeding resulted in a tax rate increase of nearly 16%. On September 13, 1994 more than 500 residents attended a board of education meeting at which respondent explained the one million dollar discrepancy and the resulting tax increase of approximately $140 per household which was required to make up for the error. This application and appeal followed.

Petitioners seek respondents' removal alleging that respondents withheld information regarding the one million dollar shortfall, thereby increasing residents' tax rates for 1994. Petitioners further request that I void the May 11, 1994 election because respondents misled taxpayers regarding the extent of the district's tax increase. Respondents contend that their actions were not a willful violation of law and do not warrant their removal. Respondents further assert that petitioners have failed to prove that the election results would have been different but for their alleged misinformation.

As a threshold matter, this appeal must be dismissed as moot. The record reflects that the actions that form the basis for this application and appeal occurred in 1993 and were made public in 1994. Moreover, any shortfall in the collection of taxes for the 1994-95 fiscal year has already been remedied, as it is currently the 1995-96 fiscal year. Accordingly, there is no relief that I can grant that will relieve district taxpayers of the necessity for paying additional taxes to cover the shortfall resulting from the error in question. Indeed, the taxes necessary to make up this shortfall have already been paid by district taxpayers. Since the Commissioner only decides matters in actual controversy and will not render a decision on a state of facts which no longer exists, or which subsequent events have laid to rest, the appeal is moot to the extent that petitioner seeks to have me reduce petitioners' tax burden (Appeal of Evans, 33 Ed Dept Rep 572; Appeal of Chrisfield, 33 id. 463).

The application must also be denied on the merits. Education Law '306 provides, in pertinent part:

1. Whenever it shall be proved to his satisfaction that any trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer... has been guilty of any wilful violation or neglect of duty under this chapter, or any other act pertaining to common schools or other educational institution participating in state funds, or wilfully disobeying any decision, order, rule or regulation of the regents or of the commissioner of education, said commissioner, after a hearing at which the school officer shall have the right of representation by counsel, may, by an order under his hand and seal, which order shall be recorded in his office, remove such school officer from his office.

School district officers can only be removed under '306 when they engage in a "wilful violation or neglect of duty." This means that there must be "a purpose or intent to disregard a lawful duty or to violate a legal requirement" (Application of Kozak, 34 Ed Dept Rep 501; Matter of Felicio, et al., 19 id. 414; Matter of Winograd, et al., 17 id. 213; Matter of Trigilio and Iannotta, 14 id. 385). Mere negligence on the part of a school officer is not enough to warrant removal (Appeal of Schofield, 34 Ed Dept Rep 143).

In this case, the acts about which petitioner complains do not rise to the level of willful misconduct. The record reflects that respondents' error in the tax warrant that was sent to the Town of New Castle was inadvertent, not willful. The record further reflects respondents' initial attempt to address the shortfall. While respondents' failure to follow up with the town supervisor of Yorktown prior to the supervisor sending notices to residents alerting them to the shortfall is regrettable, it did not violate any law, order or regulation. Petitioners have failed to show any purpose or intent by respondents to disregard a legal requirement.

The appeal must also be dismissed on the merits because I find that there is no basis to overturn this election. To overturn an election, petitioner must prove improper conduct by respondent, such as a violation of law or regulation (Appeal of Horton, 35 Ed Dept Rep ___, Decision No. 13503, dated November 6, 1995; Appeal of Goldman, 35 Ed Dept Rep ___, Decision No. 13487, dated September 29, 1995; Appeal of DiMicelli, 28 Ed Dept Rep 327). Petitioner must also establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd. 26 NY2d 709; Appeal of Goldman, supra; Appeal of Roberts, 33 Ed Dept Rep 601), were so pervasive that they vitiated the electoral process (Appeal of Roberts, supra; Matter of Gilbert, 20 Ed Dept Rep 174), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Matter of Levine, 24 Ed Dept Rep 172, aff'd sub nom; Capobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 112 AD2d 640). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Goldman, supra; Appeal of Roberts, supra).

The record reflects that the notices regarding the budget included an estimated tax increase far less than was ultimately necessary because of the one million dollar shortfall. However, respondents' estimated tax rate was based on their budget figures, not on the additional taxes about which the Town of Yorktown later notified residents. Respondents were not legally obligated to provide district voters with any tax rate estimate. Even if respondents were obliged to provide an accurate accounting of the estimated tax rate, petitioners must still demonstrate that the outcome of the election would have been different but for this alleged irregularity (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd. 26 NY2d 709; Appeal of Goldman, supra, Appeal of Roberts, supra).

Petitioners assert that the alleged misleading information affected the results of the election of two board members to the board of education. As proof, petitioners submit 437 affidavits from individuals who essentially claim that they were affected by the information they received from respondents. However, none of the affidavits state that, but for being misinformed, they would have voted for candidate Ciffone. Moreover, the record reveals that only 217 of the 437 individuals who submitted affidavits stated that they voted in the May 11, 1994 district election. The record further reflects that of the individuals who claim to have voted, only 114 actually voted. I will not consider the 185 affidavits submitted by petitioner from individuals who did not participate in the district's election, since those individuals have no legitimate basis to now complain about the results of that election (Appeal of Bosco, 32 Ed Dept Rep 554). Even if I assume that all 137 of the individuals who participated in the election would have voted for Ciffone but for respondents' alleged misinformation, this still does not prove that the results of the election would have been altered. The winning candidates were elected by margins of 712 and 306 votes, respectively.

In view of the foregoing, I find that there is no basis to overturn the results of the May 11, 1994 election.