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Decision No. 13,937

Appeal of T. ALLEN LAMBERT from action of the Board of Education and the Superintendent of the City School District of the City of Ithaca regarding election irregularities.

Decision No. 13,937

(May 9, 1998)

Bond, Schoeneck & King, LLP, attorneys for respondents, Donald E. Budmen, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the actions of the superintendent and Board of Education of the Ithaca City School District ("respondents") relating to the district's May 21, 1997 budget vote. The appeal must be dismissed.

Petitioner alleges that respondents distributed false and misleading information regarding the proposed budget in an attempt to persuade voters to approve it. Petitioner contends that: respondents acted in concert with local media outlets to promote a yes vote; the budget brochure distributed by respondents was incomplete and inaccurate; respondents used incorrect figures to mislead voters about increases in the budget over the previous year; electioneering took place at the polls on the day of the vote; respondents improperly campaigned for passage of the budget and district resources were used to promote the budget.

Petitioner initially requested that I order a new budget vote, but later withdrew that request. Petitioner asks that I find that respondents violated the letter and the spirit of the law by their actions in conducting this budget vote.

Respondents raise a number of procedural defenses including timeliness, defective service of the petition, and failure to state a claim upon which relief can be granted. In addition, respondents oppose petitioner's attempt to bring a class appeal. Respondents further contend that petitioner has failed to meet his burden of proof, that their actions were proper and that they took all reasonable precautions to prevent electioneering.

Before reaching the merits, I will address the procedural issues raised by respondents. Petitioner seeks to bring this appeal as a class appeal on behalf of "a large class of similar citizens", apparently meaning other voters and taxpayers in the district. Pursuant to 8 NYCRR "275.2(a), however, a class appeal is permitted only where the class of individuals "is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class." Where the petitioner fails to set forth the number of individuals he seeks to represent, class status will not be permitted (Appeal of Sperl, 33 Ed Dept Rep 388; Appeal of Reid, 32 id. 587). Petitioner has failed to establish the number of individuals in the proposed class or to show that members of the class are so numerous that joinder is impossible. Likewise petitioner has failed to demonstrate that the issues of fact are the same for all members of the proposed class. Class status is, therefore, denied.

Respondents contend that the appeal should be dismissed because petitioner personally served the petition on respondents, in violation of 8 NYCRR "275.8. However, the record contains an affidavit of service, which indicates that a third party served the petition. Therefore, I will not dismiss the petition for lack of proper service. I note, however, that petitioner submitted additional reply papers with new exhibits. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR "275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions or exhibits that should have been in the petition (Appeal of Catherine B., 37 Ed Dept Rep 34; Appeals of Lindauer and McKee, 34 id. 596). Accordingly, while I have reviewed petitioner's additional materials, I have not considered those portions containing new allegations and material not responsive to new material or affirmative defenses set forth in the answer.

Pursuant to "275.16 of the Commissioner's Regulations, an appeal to the Commissioner of Education under "310 of the Education Law must be brought within 30 days of the action complained of unless excused by the Commissioner for good cause shown. Petitioner commenced this appeal June 20, 1997, within 30 days of the May 21, 1997 budget vote. Respondents contend with the exception of one allegation of electioneering on the day of the vote, all of the acts complained of occurred more than 30 days prior to instituting this appeal. Petitioner does not claim that the electoral process had been affected by those acts, and has withdrawn his request for a new vote. Because the vote itself is not at issue, petitioner's claims regarding those acts that occurred prior to the vote are untimely and the appeal is dismissed as to those acts (Appeal of Pucci, 31 Ed Dept Rep 3; Appeal of Scanio, 22 id. 315).

Moreover, since petitioner has withdrawn his request for a new vote, he is, in effect, merely seeking an advisory opinion concerning the propriety of respondent's actions. The Commissioner does not issue advisory opinions in appeals brought pursuant to Education Law "310 (Appeal of a Student with a Disability, 37 Ed Dep Rep 307). Therefore, the appeal must be dismissed.

Although, I am dismissing this appeal on procedural grounds, the facts of this case warrant a brief recitation of the law governing elections. While a board of education may present informational material to the voters concerning a proposed annual budget (Education Law ""1716, 2601-a), and individual board members are entitled to express their views about issues concerning the district (Appeal of Eagelfeld, 33 Ed Dept Rep 256; Appeal of Bosco, 32 id. 554;), the Court of Appeals has held that school district funds may not be used to exhort the electorate to support a particular position (Matter of 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). School boards are ultimately responsible for the proper conduct of school district elections 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).

Therefore, I urge respondent to review its policies to ensure strict compliance with these principles in the future and to avoid even the appearance of impropriety.

In light of my determination, there is no need to address the parties' remaining contentions.