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Decision No. 13,922

Appeal of HENRY J. BARTOSIK from action of the Board of Education of the Ellenville Central School District regarding election irregularities.

Decision No. 13,922

(April 17, 1998)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, James P. Drohan, Esq., of counsel

MILLS, Commissioner.--Petitioner, a resident of the Ellenville Central School District ("the district"), challenges actions of the district's board of education ("respondent") related to its June 26, 1997 budget vote. The appeal must be dismissed.

After the district's proposed budget for the 1997-98 school year was defeated on May 21, 1997, respondent decided to resubmit six budget propositions to the voters. The vote was scheduled for June 26, 1997 and notices of such were published in the Middletown Times Herald on June 17 and 23, 1997.

Petitioner contends that respondent's method of notifying district residents of the June 26, 1997 vote was improper. Specifically, petitioner alleges that the Ellenville Press, which has general circulation within the district, did not carry the required notices. Petitioner also contends that notices were not posted in any of the "most public places." Finally, petitioner claims that information regarding the vote was distributed to students, faculty and staff in school mailboxes.

Petitioner commenced this appeal and asked that I stay the June 26, 1997 budget vote and direct the district to set a new date. Petitioner's request for interim relief pending a decision on the merits was denied on June 25, 1997. Alternatively, petitioner asks that I direct the district to void the results and establish a date for a re-vote after appropriate announcements and notification to the voters. Finally, petitioner asks me to direct the district to cease its practice of involving students and using school facilities and taxpayer funds for vote announcements that are limited to faculty, staff and parents of children in attendance.

Respondent admits that it did not publish the budget notice in the Ellenville Press, but contends that the district devoted significant time, resources and energy to publicizing the vote. Respondent claims that the Middletown Times Herald -- the district's official newspaper and a newspaper of general circulation -- carried the budget notice in each of the two weeks preceding the election. Respondent contends that notices were posted in 14 public places throughout the district, including the library, six post offices, two banks, and five other commercial establishments and that a mass mailing was sent to all district residents on June 20, 1997. In response to petitioner's allegations concerning the distribution of notices through school mailboxes, respondent contends that the only information that was distributed in that manner was the same notice that was posted in public places. Finally, respondent argues that even if the notice was technically deficient, Education Law ' 2010 precludes the setting aside of an election or vote for lack of notice unless the omission was willful and fraudulent, and respondent maintains that any omission was neither.

Education Law ' 2007 provides that when a board of education calls a special meeting following a defeated budget, notice of the new vote must be published once a week during the two weeks preceding the special meeting, with the first publication at least 14 days before the meeting. Education Law ' 2004 further requires that the notice be published in two newspapers having general circulation within the district, or in one newspaper if there is only one.

Respondent does not dispute petitioner's allegation that the Ellenville Press did not carry notice of the upcoming vote or that it is a newspaper having general circulation in the district. Thus, it appears that respondent failed to comply with the technical requirements of Education Law ' 2004 by publishing the required notice in only one newspaper.

However, Education Law ' 2010 provides:

The proceedings of no district meeting, annual or special, shall be held illegal for want of a due notice to all the persons qualified to vote thereat, unless it shall appear that the omission to give such notice was wilful and fraudulent.

Thus, where petitioner has not shown that respondent's failure to publish the notices in a second newspaper was willful and fraudulent, or that the vote failed to reflect the will of the voters, the appeal must be dismissed (Appeal of Tumilowicz, 32 Ed Dept Rep 414; Appeal of Bayly and Rogers, 30 id. 442). Where the notice given is reasonably calculated and effectively does give notice to the public of the election, a technical failure to give proper notice is not a basis for invalidating an election result (Education Law ' 2010, Hurd v. Nyquist, 72 Misc. 2d 213; Appeal of Pendergast, 20 Ed Dept Rep 127).

Here, it appears that respondent's efforts to provide notice to district residents through publications, postings and mailings were reasonably calculated to provide notice of the budget vote. There is no evidence that such efforts did not provide effective notice to the public or that the vote failed to reflect the will of the voters due to a deficiency in the notice provided. Finally, there is no indication that any omission was willful or fraudulent. Accordingly, I will not invalidate the result of the vote on this basis.

Petitioner's claim that notices were not posted in any of the recommended "most public places" is without merit. Education Law ' 2004(1) also provides that if there is no newspaper having general circulation within the district, the notice must be posted "in at least twenty of the most public places in said district." Here, both petitioner and respondent agree that there are newspapers having general circulation in the district, rendering the posting requirement inapplicable.

Finally, with respect to the notices which were distributed through school district mailboxes, while the record before me does not indicate that there was any intent by respondent to influence any particular segment of the population to cast its vote in a particular manner, I strongly suggest that in order to avoid the appearance of partisan activity, respondent should refrain from distributing notice of such votes in a manner which only reaches certain portions of the district populace (Appeal of Bayly and Rogers, supra; Appeal of San Remo Civic Association, Inc., 28 Ed Dept Rep 175).