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Decision No. 13,561

Appeal of RICHARD BAYER from action of the Board of Education of the Brewster Central School District regarding budget publications.

Appeal of RICHARD BAYER from action of the Board of Education of the Brewster Central School District regarding election fraud.

Decision No. 13,561

(March 7, 1996)

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent, Daniel Petigrow, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's actions concerning a budget publication and a school district election in two separate appeals. Because the appeals are related, they are consolidated for decision. Both must be dismissed.

In April 1995, the Board of Education of the Brewster Central School District ("respondent") published an informational newsletter, the "Brewster Bulletin," which stated that per pupil spending would decrease in the 1995-96 school year. On May 3, 1995, respondent held its annual vote on the budget, which was narrowly approved, 1345 to 1329. Petitioner filed his first appeal on June 26, 1995, alleging that the newsletter distributed by respondent was partisan and that respondent misrepresented its projected enrollment of students for 1995-96. Petitioner requested that Commissioner Sobol set aside the district's May 3, 1995 budget vote, order a new budget vote and formally reprimand respondent.

Petitioner subsequently filed a second appeal on September 26, 1995, alleging that respondent's superintendent gave a false statement in his previous appeal to the Commissioner and that six members of respondent board participated in the dissemination of deceptive enrollment figures, together with alleged violations of the Freedom of Information Law (FOIL).

Respondent contends that the first appeal is untimely, that the Commissioner lacks jurisdiction due to improper service and that FOIL claims are not properly before the Commissioner. With regard to the second appeal, respondent argues that the appeal is untimely, fails to state a cause of action upon which relief can be granted, that the Commissioner lacks subject matter jurisdiction over the alleged wrongdoing of perjury and lacks jurisdiction over those individuals who have not been served with the petition.

Before reaching the merits, I will address respondent's primary procedural argument. Respondent contends that the appeals are untimely because the actions of which petitioner complains were committed more than 30 days prior to the filing of both appeals. An appeal to the Commissioner of Education must be commenced within 30 days of the act or decision complained of, except for good cause shown (8 NYCRR 275.16). In this case, petitioner alleges that respondent's newsletter, published in April 1995, contained partisan information and that respondent deliberately falsified enrollment projections for the May 3, 1995 budget vote. Petitioner filed the first appeal on June 23, 1995, more than 30 days after the alleged improper acts in April 1995 and May 3, 1995.

Petitioner contends that this delay should be excused because he needed to wait until June 13, 1995 to hear the official explanation by respondent's superintendent concerning the district's enrollment figures, that he was researching the law regarding partisan activities and that he needed time to obtain the signatures necessary to overturn the budget vote. While I am sympathetic to petitioner's excuses, they do not rise to the level of "good cause shown" and do not provide a basis to excuse his lateness in filing this appeal (Application of Marshall, et al., 33 Ed Dept Rep 26; Appeal of Bosco, et al., 32 id. 554; Appeal of Ruffino and Wilber, 31 id. 183). Therefore, the first appeal must be dismissed.

Respondent contends that the second appeal is also untimely, since it is merely an expansion of the issues that petitioner originally raised in his first petition. I note that petitioner takes issue with statements made in the affidavit of respondent's superintendent which were submitted with petitioner's first appeal. The superintendent's affidavit is dated July 14, 1995, so even if I were to consider that affidavit, the issue of which petitioner complains in his second appeal, it is also untimely under the regulations, since that appeal was commenced September 26, 1995. Therefore, the second appeal must also be dismissed.

Turning to the merits, petitioner contends that respondent distributed a partisan newsletter prior to a budget vote, distributed false enrollment figures and colluded with the superintendent to conceal this information from the public. My review of the April 1995 "Brewster Bulletin" to which petitioner objects reveals that it is informational and not partisan. While petitioner may disagree with the enrollment projections it contains, it does not exhort the electorate to vote in a certain way and is thus not a violation of Phillips v Maurer, 67 NY2d 672.

To overturn an election, petitioner must prove improper conduct by respondent, such as a violation of law or regulation (Appeal of Goldman, 35 Ed Dept Rep 126; 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 Boyles 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).

In this case, petitioner alleges that the voters were misled by respondent's claim that there would be a reduction in per pupil spending in the 1995-96 school year. The budget passed by sixteen votes. Petitioner offers the signatures of 42 voters on a petition that states:

Although I did not vote against adoption of the school budget on May 3, 1995, had the Brewster Central School District not mislead me with false claims of a 'reduction in per pupil spending,' I would have voted against adoption."

Petitioner contends that these petitions warrant overturning the election. Respondent notes that the signatures of the individuals who signed the petition were not verified and that nine individuals who appear on the list did not even vote in the May election. The Commissioner of Education has overturned a referendum only when affidavits made under oath from people who voted in the previous election asserted individually that they would have voted against the referendum had they been aware that respondent's statements were incorrect (Appeal of Hable, 30 Ed Dept Rep 328). However, the unverified signatures submitted by petitioner in the form of petitions are insufficient to warrant my overturning the election.

Petitioner also contends in his second appeal that respondent superintendent submitted a false affidavit in response to petitioner's first appeal when he stated that he was only aware of the lower enrollment figures after the May 3, 1995 budget vote. As respondent notes, petitioner is essentially accusing the superintendent of perjury, which is a violation of Penal Law '210.00, not a violation of Education Law. Respondent correctly notes that I have no jurisdiction to determine whether the superintendent is guilty of perjury. However, petitioner is free to pursue this allegation in a court of competent jurisdiction.

Finally, petitioner alleges that respondent violated the Freedom of Information Law (FOIL) by refusing to supply him with the student enrollment data he seeks. The Commissioner of Education lacks jurisdiction to decide FOIL claims. The appropriate forum for addressing alleged FOIL violations is in the Supreme Court of the State of New York (Appeal of Lindauer and McKee, 34 Ed Dept Rep 596; Appeal of Williams, 33 id. 318; Appeal of Kushner, 31 id. 351).

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