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Decision No. 13,710

Appeal of RICHARD and LISA SABA from action of the Board of Education of the Deer Park Union Free School District regarding a bond issue vote.

Decision No. 13,710

(December 5, 1996)

Cooper, Sapir & Cohen, P.C., attorneys for respondents, Robert E. Sapir, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge a March 27, 1996 bond issue vote. The appeal must be dismissed.

Petitioners allege that five times between February 1, 1996 and March 27, 1996, respondent allowed the district's PTA to distribute materials through their son's classroom mailbox which were designed to solicit favorable votes for an upcoming bond issue. Petitioners also allege that election materials distributed at a Board of Education Bond Committee meeting on February 1, 1996 were wilfully misleading, failing to reflect total interest costs. Petitioners also challenge certain actions as improper electioneering. Specifically, petitioners object to posters inside the polling place stating, "LET'S BOND TOGETHER, Save Our Schools, Bond Vote March 27th," photographs posted inside the polling place depicting the deteriorating condition of the school buildings, and a videotape about the condition of the schools playing on a television located between the voting booths.

Petitioners request that I direct respondent to prohibit the use of school grounds for the distribution of partisan materials, reprimand respondent for the alleged improprieties, and review the validity of the election.

Respondent contends that petitioners' claims are untimely. Respondent also claims that petitioners' request for equitable relief should be denied because petitioners have "unclean hands," having allegedly engaged in improper electioneering on the day of the vote. Respondent further contends that the petition fails to allege that respondent was aware of the PTA's activities. Finally, respondent contends that petitioners have not demonstrated that the acts complained of affected the outcome of the vote.

As a threshold matter, the appeal must be dismissed as untimely. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). While the acts of which petitioners complain occurred between February 1, 1996 and March 27, 1996, this appeal was not brought until April 30, 1996, more than 30 days after the last challenged act. Petitioners offer an excuse for their delay, claiming that they contacted the State Education Department on several occasions to obtain instructions for filing an appeal, but did not receive complete instructions until April 29, 1996. Except in unusual circumstances, however, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of Kline, 35 Ed Dept Rep 92; Appeal of a Child with a Disability, 33 id. 672; Application of Johnson, 32 id. 458; Appeal of Pitney Bowes, Inc., 31 id. 290). Since I find no evidence of unusual circumstances in this case, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, petitioners have not established that the vote should be overturned. For the Commissioner to invalidate a vote or election, a petitioner must 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, 35 Ed Dept Rep 126; Appeal of Roberts, 33 id. 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). Petitioners have the burden of establishing the facts upon which they seek relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). In view of the foregoing, I find that petitioners have not met their burden of proof in this case. Although petitioners have demonstrated that respondent conducted the election in a less than ideal manner, they have failed to provide concrete evidence demonstrating that the outcome of the election was affected by the alleged irregularities or that there was sufficient laxity in adherence to the Education Law to warrant overturning the election.

Moreover, the Commissioner has no authority to grant the relief petitioner requests: a reprimand of board members (Appeal of Kane, 34 Ed Dept Rep 116; Appeal of Simano, 33 id. 20; Appeal of Legatos, 23 id. 10).

While I am dismissing the appeal on both procedural and substantive grounds, the disturbing facts of this case warrant a recitation of the law governing elections. First, the use of district resources to distribute materials designed to solicit favorable votes violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Maurer, 67 NY2d 672; Appeal of Allen, 32 Ed Dept Rep 69). Even indirect support, such as a school board giving a PTA access to its established channel of communication to parents to espouse a partisan position that the board itself was prohibited from doing directly, has been deemed improper (Stern v. Kramarsky, 84 Misc. 2d 447; Appeal of Allen, supra; Appeal of Weaver, 28 Ed Dept Rep 183). Although in this case, respondent claims that it was unaware of these alleged activities, school boards are ultimately responsible and must ensure that they do not lend even indirect support to partisan activities through their communications channels (Appeal of Friedman, 32 Ed Dept Rep 601; Appeal of Allen, supra). Also, while a board of education may distribute factual information regarding a vote or election, it may not use school district funds to exhort the electorate to support a particular position (Phillips v. Maurer, supra; Appeal of Brousseau, 35 Ed Dept Rep 291; Appeal of Martino-Kraft, 34 Ed Dept Rep). Furthermore, no electioneering may take place within 100 feet of the polling place (Education Law '2031-a). In this case, petitioner alleges, and respondent does not deny, that a poster, photographs and a television playing a videotape were located inside the polling place. School boards must ensure that the content of such media is informational. Any messages that are not informational, but rather are intended to solicit favorable votes, would constitute an improper use of school district funds to exhort the electorate to support a particular position and would constitute improper electioneering in violation of Education Law '2031-a.

Therefore, I advise respondent to review its policies to ensure strict compliance with these laws in the future.