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Decision No. 13,880


Appeal of HERMAN FRIEDMAN, SOLOMON SCHLESINGER and DAVID FARBER from action of the Board of Education of the East Ramapo Central School District regarding a bond issue vote.

Decision No. 13,880

(March 6, 1998)

Carlet, Garrison & Klein, attorneys for petitioners, Norman I. Klein, Esq., of counsel

Greenberg, Wanderman & Fromson, attorneys for respondent, Stephen M. Fromson, Esq., of counsel

MILLS, Commissioner.--Petitioners, residents of the East Ramapo Central School District, challenge a March 18, 1997 bond issue vote. The appeal must be dismissed.

On January 28, 1997, the Board of Education of the East Ramapo Central School District ("respondent") adopted a resolution calling for a special district meeting on March 18, 1997 for the purpose of voting on a bond proposition. Petitioners allege that literature which respondent disseminated regarding the bond proposition exhorted voter support and contained willfully incorrect and misleading information. This appeal ensued. Petitioners' request for interim relief pending a decision on the merits was denied on April 28, 1997.

First, petitioners allege that the tone of respondent's literature exhorted the voters to support the bond issue. They cite a passage from the "Special Message from the Superintendent of Schools," which states that "a positive vote on this bond issue . . . is a win-win situation for taxpayers" and "a defeated bond represents a lose-lose situation for taxpayers."

Petitioners also allege that the literature contained knowing and willful misstatements, for the purpose of misleading voters. Specifically, the literature indicated that a favorable vote would "lock in" a 54 percent State reimbursement level for the entire project and that the bond would cost $5.1 million over its entire life. Petitioners argue that the (then) current aid formula was only in effect until June 30, 1997 and is subject to change at any time. They, therefore, argue that it was inappropriate to present estimated savings based on that formula.

Petitioners also cite a statement from the literature indicating that "the bond . . . will result in a net tax rate decrease over its first five years" and "in actual dollars, there will be no net cumulative cost for the first 11 years." Petitioners contend that this too was a willful misrepresentation intended to deceive and assert that on April 15, 1997, respondent introduced and passed a budget with a 1.9 percent tax increase. They allege that while the literature indicated a savings of $800,000 in energy and building repairs for 1997-98, the budget reflected only $200,000 in anticipated savings related to the bond issue. Petitioners allege that the literature overstated the energy and capital repair savings, and that the manner in which the information was presented in the literature was misleading. Petitioners request that I set aside the results of the March 18, 1997 vote and that I direct respondent to cease spending public funds and disseminating literature exhorting the electorate to vote in support of particular positions.

Respondent contends that petitioners are not entitled to the relief requested because they have failed to allege that they were misled by the literature or to identify any voters who were misled. It argues that elections are entitled to a presumption of regularity and that petitioners have not met their burden of proving that the alleged irregularities vitiated the voting process or that the results of the vote do not accurately reflect the will of the voters. Respondent further argues that its financial projections were based on historical data and that petitioners have failed to demonstrate that the literature was incorrect or misleading.

In the conduct of school district votes and elections, there is a presumption of regularity (Appeal of Kushner, 36 Ed Dept Rep 261; Appeal of Cochran, 35 id. 555). A district election will not be overturned due to election irregularities unless petitioner establishes that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, 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, 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). Furthermore, 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. They have failed to provide evidence demonstrating that the alleged irregularities, if true, affected the outcome of the election, that the alleged irregularities vitiated the voting process, or that there was sufficient laxity in adherence to the Education Law to warrant overturning the election. To the contrary, petitioners acknowledge in their petition, "[I]t is impossible to ascertain what effect such information would have had on the voters had they known the true facts at the time that this vote was taken."

While I am dismissing the appeal, the facts of this case warrant a recitation of the law governing the dissemination of information regarding school district votes and elections. While a board of education has a right to present informational material to its voters and to encourage its residents to vote, it may not use school district funds to exhort the electorate to support a particular position (Phillips v. Maurer, 67 NY2d 672). It may not "persuade [or] convey favoritism, partisanship, partiality, approval or disapproval" (Phillips v. Maurer at 674). While respondent's literature clearly included factual information intended to educate the public, it also contained statements that arguably convey partiality. In view of the disposition of this appeal, I need not consider petitioners' specific claims regarding those alleged irregularities. I do, however, caution respondent in the future to limit the content of its literature to "the publication of information 'reasonably necessary' to educate the public" (Phillips v. Maurer at 674).