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Decision No. 13,941

Appeal of HAROLD McDOUGALL and SUSAN MURPHY from action of the Board of Education of the Perry Central School District, John Miller, individually and as president of the Board of Education, Samuel Montleone, Priscilla Popp, Douglas Wilson, Daniel Federico, Marilyn Olin, and Drue Muehl, individually and as members of the Board regarding a bond referendum.


Decision No. 13,941

(May 18, 1998)

Harris Beach & Wilcox, LLP, attorneys for respondents, James A. Spitz, Jr., and Stephanie M. Orefice, Esqs., of counsel

MILLS, Commissioner.--Petitioners challenge the actions of the Board of Education of the Perry Central School District and its individual members ("respondents") regarding a bond referendum. The appeal must be dismissed.

In 1994, respondents hired Brennan Architectural Associates ("Brennan") to conduct a feasibility study of the Perry Elementary School and the Perry Junior/Senior High building. The elementary school had been built in 1902, with additions in 1923 and 1939, and, according to respondents, was in a state of disrepair: the tile roof was disintegrating; the basement was flooding, resulting in a severe mold problem; and the floors were buckling from water damage. The building occupied the entire two-acre parcel of land on which it was located, with no room for expansion, and students had to cross the street to use a playground owned by St. Joseph’s Church. Respondents state that voters approved $3,375,000 in capital expenditures for improvements to the building from 1977-1996.

According to respondents, they hired Brennan after reviewing proposals from and interviewing three architectural firms. Brennan’s feasibility study was reviewed at public meetings attended by the public and local contractors. According to an October 1995 district newsletter, respondents invited approximately 20 local contractors to meet with the architects and engineers to review the findings. After hearing recommendations from those at the public meetings, respondents decided to postpone work on the elementary school. However, respondents presented a proposition for $1,860,000 for renovations and repairs to the Junior-Senior High School that was approved by the voters.

In 1995, respondents held a series of public meetings and building tours for district residents to view the structural problems of the elementary school, which at that time included the buckling of the library floor. Based on the public input and their own assessments following these tours and meetings, respondents, at their December 12, 1995 meeting, directed the superintendent to meet with Brennan to develop a plan to construct a new elementary school. Respondents held two open workshops to discuss the plans.

On July 24, 1996, respondents hired Brennan to draw up a schematic design for the new building. Respondents paid Brennan $120,000 for this service, $30,000 of which was in the 1995-1996 annual budget, and $90,000 of which district voters approved in the 1996-1997 annual budget. In the event voters approved the project, Brennan was to be paid 8% of the preliminary estimate of the construction costs for its architectural services, minus the $120,000 already paid. Brennan estimated the cost of construction of the new elementary school to be between $18,286,715 and $20,137,160. Since Brennan was to be paid a percentage of the construction costs, respondents requested that a construction management firm, the Pike Company ("Pike") review the project and provide an independent estimate. Pike estimated the costs to be $16,641,377. Respondents then held another public meeting to review both estimates and receive input in determining the final estimated construction costs. Respondents determined that $16,650,000 would cover the construction costs, based on both estimates and its actual needs, and held additional public meetings to explain the proposal. Respondents then approved a resolution to present to the voters a proposition for the construction of a new elementary school building at an estimated cost of $16,650,000. On January 29, 1997, the voters defeated the proposition 912 to 685.

Following the proposition’s defeat, respondents held a public meeting to discuss their options. According to respondents, they investigated the cost of renovation of the existing elementary school, rather than new construction, in response to public comments. A safety specialist from the Genesee Livingston Steuben Wyoming Counties Board of Cooperative Educational Services ("BOCES"), the district’s insurance carrier, an architect from Brennan, an engineer hired by Brennan, a Pike employee and a representative from the United States Occupational Health and Safety Agency ("OSHA") toured the elementary school building. Since the last estimate for renovations had been done in 1994, and many changes had occurred to the building since then, the district requested an estimate for renovation costs from Pike. Pike’s estimate was $8,333,160. Respondents decided it was economically imprudent to conduct a complete facility study of the renovations, since such a study could cost $30,000. Respondents then offered further public inspections of the school. Based on the public feedback, the expert reports and the Pike estimate of renovations, respondents determined to proceed with new construction, rather than renovation. On April 30, 1997, in accordance with Education Law "416(6), respondents again offered the $16,650,000 proposition to the voters after holding another public meeting and placing informational advertisements in local papers. This time, the proposition passed 1185 to 894. This appeal ensued.

Petitioners request that the April 30, 1997 vote be nullified and that the results of the January 29 vote be reinstated. They claim that defeat of the first proposition on January 29 was essentially a voter mandate against new construction, and respondents refused to seriously consider renovating the existing elementary school as an alternative. Petitioners assert that respondents deliberately withheld and provided misleading information to the voters concerning the potential cost of the proposed new construction to discredit the feasibility of renovation. Instead of offering an alternative to new construction or a more modest construction project, petitioners contend that respondents proceeded to place the identical proposition before the voters a second time on April 30, 1997. Petitioners assert that the incomplete and misleading information impaired voters’ ability to make an informed decision. They also request that respondents be permanently enjoined from placing any proposition for new construction before the voters until a serious estimate for renovation is obtained. Petitioners further appear to request an order directing respondents to place a proposition for renovation before the voters. Petitioners also request an order requiring respondents to write procurement procedures in accordance with the General Municipal Law, ("GML") to repay to the district the $120,000 paid to Brennan, and to pay petitioners $1 each for violating their rights by taking their property through taxes without constitutional due process.

Petitioners contend that respondents misled and misinformed the voters in several respects: unsubstantiated cost estimates for both new construction and renovation; the impugning of the fire safety of the existing building; false statements about the availability of State aid and the limits imposed on district spending; and compliance with the GML and district policy. Specifically, petitioners claim that the contract with Brennan called for a Schematic Design Phase for the design of a Pre K-8 elementary school, including site plan drawings with building elevations, floor plan layouts and building design, a scale model of the building, and cost estimates. Brennan’s three-page cost estimate ranged from $18,286,715 to $20,137,160. Petitioners claim that Brennan’s cost estimate was never revealed to the public. Instead, petitioners maintain that the only number publicized was the amount in the proposition - $16,650,000 – which was based on a one-page unsubstantiated thumbnail "guestimate" by Pike. Petitioners claim that Pike’s estimate was not based on any written request from the district, provides no statement of work, contains no justification of costs and cannot be subject to audit. In addition, petitioners allege that respondents misled voters into thinking that the district could spend no more than the $16,650,000 in the proposition, whereas the figure would merely limit the district’s debt obligation, not construction costs or overruns. Petitioners further claim that bids for construction, such as Pike’s, must be obtained through competitive procedures in accordance with GML "103. Petitioners assert that respondents misled and misinformed the voters regarding the continuing status of Brennan’s contract following the rejected proposition in January, by failing to disclose the higher Brennan cost estimates and by failing to fully disclose all information about every aspect of the process.

Petitioners also contend that respondents misled the voters about the feasibility of renovating the existing building. Despite the fact that the structural analysis performed after the first vote in January proved that the building was sound, petitioners claim respondents failed to disseminate this information. In contrast, petitioners allege that respondents publicized safety reports questioning the fire safety of the building, thus tainting the voters’ ability to make informed decisions. Petitioners assert that respondents failed to counter and correct the misinformation about the structural safety of the building. Petitioners further claim that respondents publicized an inflated and unsubstantiated estimate from Pike of over $8,000,000 to renovate the elementary school building, whereas in a 1994 feasibility study, Brennan estimated it would cost $2,281,919 for renovations. In addition, petitioners allege that one respondent board member quoted the cost of replacing the roof as $1,300,000, for which he claimed State aid would not be available. Petitioners maintain that these unsubstantiated and inflated costs misled voters to believe that the cost of renovation would be excessively high in comparison to new construction. They further allege that respondents ignored a petition signed by 300 residents in support of renovation.

Additionally, petitioners assert that respondents violated their own policy regarding contracting for services that otherwise need not be bid pursuant to GML "103. That policy requires the district to have procedures that encourage competitive procurement. However, petitioners contend that the Brennan contract for $120,000 was not put out for bid, nor was any procedure followed in obtaining an estimate from Pike. Furthermore, petitioners claim that the district has failed to provide written procedures for procuring such services, as required by its policy. Petitioners assert that respondents misled the voters about their policies and the requirements for competitive bidding. Finally, petitioners assert that respondents withheld information regarding the Pike estimate requested through the Freedom of Information Law ("FOIL"). However, in their reply, petitioners state that they are not asking the Commissioner to rule on the FOIL issue or respondents’ alleged failure to comply with GML "104-b.

Respondents claim that the petition fails to state a cause of action, the claims as to the procurement of services from Brennan and Pike are untimely, and the Commissioner has no jurisdiction to review violations of the GML or FOIL. Respondents also assert that petitioners have failed to meet their burden of proving that any individuals who voted in favor of the proposition would have voted differently. Finally, respondents assert that petitioners’ claims against the individual respondents should be dismissed since respondents were acting in their official capacity.

I must first address several procedural issues. In their reply, petitioners request that I remove respondents’ answer from the record and deem true the statements in the petition because the answer was served by Federal Express instead of by personal service or mail in accordance with ""275.13(a) and 275.8(b) of the Commissioner’s regulations. Although respondents did not technically comply with "275.8(b), the technical deficiency is deminimus in this case, where petitioners actually received the answer in a timely fashion, were not prejudiced in their ability to reply, and in fact submitted a twenty page reply with attachments (Appeal of DeVore, 36 Ed Dept Rep 326). However, I admonish respondents to comply with the regulations in the future.

Petitioners also request that I remove respondents’ memorandum of law from the record since it is an unwarranted attempt to replace respondents’ improperly served answer. Since I am accepting respondents’ answer, respondents’ memorandum of law is accepted for the record. However, respondents set forth two affirmative defenses in their memorandum of law which are not set forth in their answer -- that petitioners failed to name necessary parties (Brennan and Pike) and that many of respondents’ allegedly misleading communications are untimely. Section 275.12 of the Commissioner’s regulations requires that respondents' affirmative defenses be set forth in their answer. A memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of Grinnell, 37 Ed Dept Rep ___, Decision #13914, dated April 10, 1998; Appeal of Coombs, et al., 34 Ed Dept Rep 253; Appeal of the Bd. of Educ., Tuxedo Union Free School District, 33 id. 626). Accordingly, while I have reviewed respondents’ memorandum of law, I have not considered those portions that contain the aforementioned affirmative defenses.

Additionally, a reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been included in the petition. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR "275.14; (Appeal of Schuler, 37 Ed Dept Rep ___, Decision #13915, dated April 10, 1998; Appeal of Kushner, 36 Ed Dept Rep 261). Accordingly, I have not considered the new material belatedly added by petitioners in their reply.

Petitioners appeal the actions of the members of respondent board in their official and individual capacities. However, an individual board member has no more authority than any other qualified voter of the district (Appeal of Silano, 33 Ed Dept Rep 20; Matter of Bruno, 4 id. 14). Unless the board takes official action designating an individual member as the representative of the board for a particular purpose, that board member has no authority to act for the board. Petitioners have presented no evidence that respondent board members were acting outside the scope of their official powers or duties. Rather, it appears that the board members were at all times acting in their official capacities. Accordingly, any claims against respondent board members in their individual capacities are dismissed.

Respondents argue that the claims regarding the procurement of services from Brennan and Pike must be dismissed as untimely. Under 8 NYCRR "275.16, an appeal under Education Law "310 must be brought within 30 days of the act or decision complained of. The contract with Brennan was executed on July 24, 1996, ten months prior to the commencement of this appeal on May 27, 1997. Accordingly, the portion of the appeal concerning the award of the contract to Brennan is dismissed as untimely (Appeal of Eastman Kodak Company, 32 Ed Dept Rep 575). There is no contract with or date of procurement of services from Pike. To the extent Pike provided a cost estimate for construction, that estimate was provided prior to the January 29, 1997 vote, approximately four months prior to the filing of the petition. Accordingly, any challenge to Pike’s activities is also untimely.

I turn now to the merits. To overturn an election, petitioners must prove improper conduct on the part of respondents, such as a violation of Education Law or Commissioner's regulations (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). Petitioners must also establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, 301 NYS2d 664, aff'd 26 NY2d 709, 308 NYS2d 873; Appeal of Roberts, 33 Ed Dept Rep 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 and Bd. of Ed., Glen Cove City School District, 112 AD2d 640, 492 NYS2d 157). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of an election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483). Petitioners have the burden of establishing all the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Pickreign, 28 Ed Dept Rep 163).

Petitioners have failed to meet their burden of proving improper conduct by the respondents. Although petitioners disagree with many of respondents’ decisions and allege that respondents should have acted differently, the record indicates respondents held numerous public meetings and forums on the issues, and considered the costs of renovation as well as construction. The fact that petitioners disagree with respondents’ chosen course of action, namely respondents’ decision to resubmit the same proposition for new construction rather than a modified proposal or one for renovation, is insufficient for me to substitute my judgment for respondents in the absence of any proven illegality (Appeal of Crook, et al., 35 Ed Dept Rep 546). Moreover, pursuant to Education Law "416(6), respondents were within their legal rights to place the same proposition on the ballot 90 days after the first vote on January 29. Respondents are also correct that two conflicting propositions, i.e., one for construction and an alternative for renovation, should not be placed on the same ballot (Appeal of Martin, 32 Ed Dept Rep 567).

Not only have petitioners failed to prove improper conduct on the part of respondents, they have also failed to prove that the alleged irregularities, namely the withholding or provision of misleading information, actually affected the outcome of the election. Petitioners’ submissions from three individuals, belatedly included with their reply and averring that the superintendent displayed a hostile attitude at public meetings, falls far short meeting their burden of proof. A vote will not be set aside unless the petitioner demonstrates that there is a probability that the results of the vote would have been otherwise but for the alleged irregularity. In a vote on a capital project and financing thereof, the proof must contain affidavits or statements from individuals who voted in favor of the proposition that their vote would have been otherwise but for the alleged misconduct (Appeal of Crook, et al., supra; Appeal of Bach, 32 Ed Dept Rep 273; Appeal of Hable, 30 id. 73).

The April 30, 1997 proposition passed by 291 votes (1185 to 894). Petitioners submit no proof that anyone who voted for the financing of the new construction would have voted differently but for the alleged misleading information. The record before me contains no affidavits or statements from individuals who voted for the referendum that they would have voted differently had they known about the Brennan estimate, the 1994 estimate for renovations or any other allegedly withheld information. Nor does it contain any affidavits or statements from individuals who did not vote but who would have voted against the proposition had they been provided different information. Petitioners state that such affidavits would merely be "redundant to asking [voters] if they voted [sic]." I disagree. Thus, while it may be supposed that some people might have voted differently, there is nothing in the record before me that demonstrates that the proposition would have been defeated had the information provided by respondents been different or been stated differently. Nor do I find, although petitioner does not make this allegation, that any alleged irregularities are so pervasive in nature that they vitiate the electoral process. Under these circumstances, petitioners have not met their burden of proof upon which the relief sought may be granted. Based on the record before me, I find no basis to overturn the April 30, 1997 vote on the bond issue. Consequently, the appeal must be dismissed.

The remaining issue concerns the requirements for competitive bidding. Respondents state that the procurement of Brennan’s services was not sent out for competitive bidding because they are considered professional services. Respondents assert that under GML and district policy, the procurement of professional architectural services does not require competitive bidding. Nonetheless, the district solicited proposals from three firms before choosing Brennan. In addition, respondents assert that the district was not required to obtain competitive bids before it procured Pike’s construction cost estimate. Respondents maintain that using Pike’s services was in the best interest of the district to keep costs low and to verify that the architectural fee would not be excessive. These purposes fulfilled the district policy of justifying the use of vendors selected by other than competitive means.

A contract for the provision of professional services is not subject to the sealed competitive bidding requirements of GML "103 (Appeal of Shravah, et al., 36 Ed Dept Rep 396, aff'd, Education Alternatives, Inc. v. Mills, Sup. Co., Albany Co., Special Term, December 18, 1997; seealso, Op. State Compt. 80-5). Accordingly, respondents were not required to solicit bids for Brennan’s architectural services. The record is devoid of any evidence that there was a contract with Pike or that Pike was paid for providing its estimate. Under those circumstances, the provisions of the GML would appear to be inapplicable.

I have considered petitioners’ remaining arguments and find them without merit. In light of the dismissal of the petition, I need not address the nature of the relief sought by petitioners.