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Decision No. 13,918

Appeal of HARRISON LELAND from action of the Superintendent and Board of Education of the South Colonie Central School District, Educational Research and Marketing, Inc., Capital Region BOCES, Western Suffolk BOCES, and Dodge Chamberlin Luzine and Weber regarding a bond referendum.

Decision No. 13,918

(April 15, 1998)

Tabner, Ryan and Keniry, attorneys for respondents Board of Education of the South Colonie Central School District and Thomas A. Brown, Superintendent, C. Theodore Carlson, Esq., of counsel

Harder Silber and Bergan, attorneys for respondent Board of Cooperative Educational Services Albany-Schoharie-Schenectady-Saratoga Counties (also known as Capital Region BOCES), Michael F. Bergan, Esq., of counsel

Ingerman, Smith, L.L.P., attorneys for respondent Western Suffolk BOCES, John H. Gross, Esq., of counsel

Guercio & Guercio, attorneys for respondent Educational Research and Marketing, Inc., Vanessa M. Sheehan, Esq., of counsel

MILLS, Commissioner.--Petitioner, a resident of the South Colonie Central School District ("the district"), challenges a January 23, 1997 bond referendum. The appeal must be dismissed.

Petitioner alleges that he was aggrieved by actions of the Board of Education of the South Colonie Central School District and its superintendent with respect to a January 23, 1997 bond vote and requests that I void the results of that vote. Specifically, petitioner alleges that the district improperly hired, via a cross-contract between the Capital Region BOCES and Western Suffolk BOCES, the public relations firm of Educational Research and Marketing, Inc., to promote the construction bond, allegedly a non-contingent expense, while it was on a contingency budget. Petitioner also alleges that the district distributed promotional rather than informational literature in connection with the bond vote. Petitioner's request for interim relief pending a decision on the merits was denied on April 2, 1997.

Respondents raise a number of defenses including timeliness. Generally, an appeal to the Commissioner "must be instituted within 30 days from the making of the decision or the performance of the act complained of" (8 NYCRR 275.16). The latest in the sequence of events which is the subject of this appeal was the January 23, 1997 bond referendum, with the consultant services and information distribution having been completed on or before that date. The appeal was commenced on March 13, 1997, 18 days beyond the 30-day limitation.

The Commissioner, however, may excuse the failure to commence an appeal within the time specified for good cause shown (8 NYCRR 275.16). Petitioner contends that the appeal was late because he requested information from the district pursuant to the Freedom of Information Law and that the district delayed in fulfilling his request. However, the contents of the referendum literature of which petitioner complains was public information, available in advance of the bond vote. Also, according to petitioner, he became aware that the district hired the public relations firm on February 2, 1997. Accordingly, I find that petitioner was not prevented from commencing a timely appeal (Appeal of Lilker, 35 Ed Dept Rep 14).

Petitioner also argues that since the district was on a contingency budget during the 1996-97 school year and since the contract with the public relations firm continued into that school year, his appeal challenging that contract is timely because he brought it within that school year. He relies on Appeal of Moessinger (34 Ed Dept Rep 246) where an appeal challenging the retention of excess surplus funds in the 1993-94 school year was found timely because it was brought within that school year. The two cases are distinguishable. The retention of excess surplus funds carried over to a new school year does not expire during the school year. Similarly, a district remains on a contingency budget during the entire school year. However, here, petitioner is not challenging the contingency budget status, but rather a contract -- a particular expenditure -- which ended during the school year. Any impropriety related to the contract, if true, ended with the completion of the contract on or before January 23, 1997. Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed as untimely, it would be dismissed on its merits. 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 petitioner has not met his burden of proof in this case. He has failed to provide evidence demonstrating that the alleged irregularities, if true, affected the outcome of the vote, that the alleged irregularities vitiated the voting process, or that there was sufficient laxity in adherence to the Education Law to warrant overturning the result.

While I am dismissing the appeal, I remind respondent that the Commissioner has held that the services of a public relations firm do not constitute an ordinary contingent expense (Appeal of Nolan, 35 Ed Dept Rep 139) and caution respondent to strictly adhere to such holding in the future.