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Decision No. 13,724

Appeals of ANTHONY CAPPA from action of the Board of Education of the Hempstead Union Free School District relating to an annual district meeting.

Decision No. 13,724

(January 3, 1997)

Berkman, Henoch, Peterson & Peddy, P.C., attorneys for respondent,

Gilbert Henoch, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the manner in which the Board of Education of the Hempstead Union Free School District ("respondent") conducted its annual school district meeting and election of board members and seeks an order setting aside the election and directing respondent to call another meeting. The appeals must be dismissed.

Respondent held its 1995 annual meeting and election on May 23, 1995. At the meeting three matters were presented to the voters: the 1995-96 school district budget; an election to fill two seats on the board resulting from the expiration of terms held by incumbents Betty Cross and Susan Jordan-Rainey; and a proposition presented by petitioner and other district residents to increase the number of members of the board of education. The voters approved the 1995-96 budget; the proposition to expand the board of education was defeated with 385 `No' votes and 299 `Yes' votes. The results of the election to fill Betty Cross' seat were: Robin Brazely - 611 votes; Betty Cross - 481 votes; and Karen Huff - candidacy withdrawn. The results of the election to fill Susan Jordan-Rainey's seat were: Regina Lattimore-Gordon - 625; Rev. Cornelius Watson - 444. Thus, Robin Brazely and Regina Lattimore-Gordon were elected to the board of education.

Petitioner initiated two appeals challenging the annual election and budget vote. Petitioner initiated the first appeal prior to the vote, seeking an interim order enjoining respondent from conducting the vote on May 23, 1995, based upon allegations of procedural improprieties. On May 22, I denied petitioner's request for interim relief. On June 5, 1995, subsequent to the May 23, 1995 vote, petitioner initiated a second appeal seeking annulment of the election and budget vote based upon the same alleged improprieties. In that appeal petitioner again sought an interim order prohibiting the two successful candidates from being seated pending a final decision in the appeal. On June 21, 1995, I denied petitioner's request.

Both of petitioner's appeals arise from the same annual election and budget vote conducted by respondent on May 23, 1995, and the facts and issues set forth in each appeal are identical. The sole relief requested in petitioner's first appeal consisted of a request for an interim order staying the election and budget vote - which request I denied, permitting respondent to hold its election and budget vote on May 23, 1995. Consequently, petitioner's first appeal is superseded by the second, and all issues and allegations relating to the May 23, 1995 annual election and budget vote are consolidated for determination herein.

Petitioner raises three objections to the election and budget vote. Although petitioner was not a candidate for election to the board of education, he challenges respondent's election procedures that require individuals running for office to declare the specific office for which they are a candidate, rather than permitting all vacancies to be filled at-large. Petitioner objects to that procedure, generally, and on behalf of Karen Huff, a candidate who withdrew from the May 23 election. In addition, petitioner contends that improper electioneering occurred at the election. Finally, petitioner challenges respondent's refusal to place before district voters three propositions petitioner had submitted and objects to the manner in which another of his propositions was presented to the voters.

Respondent asserts that petitioner has failed to establish that any impropriety occurred in connection with the election and budget vote and that its actions were in all respects proper.

Initially I note that, in challenging the manner in which respondent conducts the election of board members, petitioner raises objections both as a resident of respondent's school district and on behalf of Karen Huff, an individual who withdrew from the election on the basis of objections similar to those raised by petitioner herein. Although petitioner submits an affidavit by Ms. Huff in support of his petition, she is not a party to the appeal. While petitioner may appeal on his own behalf, he lacks standing to assert the rights of others (Appeal of Szymkowiak, Decision No. 13702, dated November 14, 1996; Appeal of Ulcena, 33 Ed Dept Rep 328). To the extent petitioner appeals on behalf of Karen Huff, therefore, his claims are dismissed.

Petitioner alleges that the procedures followed by respondent in conducting its annual election of members to the board of education were improper. Specifically, petitioner contends that respondent's school district is governed by an 1863 special act of the Legislature which created the district and that, as a result, respondent may not follow election procedures in the Education Law that apply generally to union free school districts. Respondent's school district was created in 1863 by special act of the Legislature (L. 1863, Ch. 116, re-enacted L. 1939 Ch. 273). The district has, for many years, been recognized as a union free school district and the provisions of the Education Law governing union free school districts, which are not inconsistent with the special act, apply to respondent's school district (Cappa and Hansberry v. Hempstead District No. 1, Town of Hempstead and Mary Burns, No. 93-015564 (Sup.Ct. 1993), n.o.r.; Matter of Cappa, 17 Ed Dept Rep 117; Matter of Etheridge, 16 id. 114). Provisions of the special act relating to elections require "the persons eligible and having the greatest number of votes shall be declared elected." Petitioner contends that that provision requires respondent to permit candidates to run for vacant seats on the board of education on an "at-large" basis, rather than to fill specific vacancies, and that the individuals receiving the highest number of votes of all candidates should be declared the winners. Respondent asserts that the provisions of the special act relating to the election of board members do not conflict with and do not pre-empt its authority pursuant to Education Law '2018(a) to require candidates to designate the specific vacancy for which they seek office.

At the May 23, 1995 election, a total of four candidates were nominated to fill two vacancies - with two candidates running for each vacancy. The record indicates that, in addition to receiving the highest number of votes for the specific vacancy for which they were candidates, the two successful candidates also received the highest number of votes of all candidates seeking election. The Commissioner of Education will decide only matters in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have put to rest (Appeal of the Board of Education of the East Ramapo CSD, 35 Ed Dept Rep 542). Because the successful candidates received the highest number of votes overall, petitioner's argument relating to the applicability of the special act is academic. I note that petitioner submitted a request to withdraw that portion of his appeal seeking an interpretation of the applicability of the provisions of the special act - which request respondent opposed. Because that portion of the appeal is dismissed on procedural grounds without reaching the merits, I need not address petitioner's request.

Petitioner also claims that respondent violated Education Law '2031-a by permitting electioneering to occur within 100 feet of the polling place. In support of that allegation petitioner submits two affidavits of individual voters which state that a flyer was distributed at the polling place containing negative campaign allegations regarding two candidates for election. One affiant states that she received such a flyer from candidate Regina Lattimore-Gordon. One of the affiants stated that the information contained in the flyer caused her not to vote for either of the candidates named in the flyer.

Respondent denies that any electioneering occurred in the polling place and asserts that, even if petitioner's allegations were substantiated, petitioner has not established that the outcome of the election was affected by the impropriety. Respondent submits two affidavits in support of its denial. One affidavit is sworn to by the district clerk and the other is by Regina Lattimore-Gordon denying that she distributed any flyers within 100 feet of the polling place.

In an appeal to the Commissioner of Education, petitioner has the burden of providing the facts upon which relief is sought (8 NYCRR '275.10; Appeal of Samuels, 36 Ed Dept Rep 85). Here, both parties have submitted two affidavits in support of their respective assertions. Consequently, the evidence is in equipoise, and petitioner has not carried his burden. Moreover, even if petitioner had established that electioneering occurred, improper electioneering alone is not a sufficient basis for invalidating the results of an election (Appeal of Goldman, 35 Ed Dept Rep 126; Appeal of Cummings, 31 id. 146). Petitioner must also show that the electioneering affected the outcome of the election (Appeal of Goldman, supra). The record contains only one affidavit indicating that one vote was affected by the content of the disputed flyer. The record further indicates that the two candidates the voter refused to vote for lost by 86 and 130 votes, respectively. Consequently, petitioner failed to establish that the alleged electioneering affected the outcome of the vote. Petitioner's claim regarding electioneering, therefore, must be dismissed.

Petitioner also challenges respondent's refusal to submit to the voters three propositions submitted by district residents. The first proposition states that "the Board of Education is hereby directed to explore and implement all necessary actions legally allowed to forthwith remove all (non-corporate, non-partnership) individual, residential homeowner property from the school district tax rolls".

The second proposition, in pertinent part, directs the board of education to "reduce the taxable levy on individually (non-corporate) owned residential property ... by 1/2 ... of school taxes ..., to those district residents who have school-age children (at least one) enrolled for at least one half of the school year in a private school ...".

The third proposition, in pertinent part, directs the board of education to "expeditiously seek to arrange for the contracting-out of all secondary school children, (grades 7-12) whose parent(s) or those `in loco parentis' shall so choose in writing to do so as a result of their dissatisfaction with their child's scholastic performance and that of the academic standing of the Middle School, High School or both where their ... children are in attendance .... The authorized costs of such contractual tuition payments to other districts, shall not exceed by more than 10% the present cost to the Hempstead District of educating each student at his/her secondary grade level in the District."

Education Law '2035 provides that any proposition may be rejected by the board of education if the requested proposition is not within the power of the voters. As respondent correctly argues, the propositions seek a fundamental change in the manner of delivering and financing education which is solely within the purview of the New York State Legislature, and not the voters of an individual school district. Specifically, a board of education cannot remove residential homeowner property from the tax rolls; all privately owned real estate must bear its share of the school budget. Similarly, taxes cannot be reduced for those residents who have school-aged children. Each parcel of real estate bears its own tax burden without regard to whether there are school-aged students residing there. Finally, the district cannot pay tuition costs if a parent wishes to transfer his or her child to a different district (Education Law '3202). The parent must pay those costs individually, assuming that the other district would accept the child. Accordingly, respondent properly determined that the propositions submitted by petitioner were not within the power of the voters and properly rejected such propositions pursuant to its authority under Education Law '2035.

Finally, petitioner claims that, by including the phrase "as offered by certain members of the community", respondent improperly altered his proposition to increase the size of the board of education. Petitioner contends that the language was meant to identify him and the other residents that joined in submitting the proposition and, thus, caused the proposition to be defeated. Respondent asserts that the language was inserted merely as a means to clarify that the proposition was not offered by the board of education.

Petitioner offers no legal basis for prohibiting a board of education from including such clarifying language in a proposition. Moreover, petitioner has not submitted any evidence to establish that the vote on the proposition was affected by inclusion of the disputed language. Consequently, there is no basis to nullify the results of the vote rejecting the proposition to increase the size of the board of education.

I have reviewed petitioner's other assertions and find them to be without merit. Petitioner has established no basis on which to overturn the results of the May 23, 1995 annual school district meeting and election.