Decision No. 14,102

(March 31, 1999)

MILLS, Commissioner.--Petitioners appeal certain actions taken by the Board of Education of the Greenburgh Central School District No. 7 ("respondent board") and the Superintendent of Schools, Anthony L. Mazzullo, with respect to a special district meeting held on September 10, 1997. Because the appeals are based on the same facts, they are consolidated for decision. The appeals must be sustained in part.

On June 10, 1997, respondent board adopted a contingency budget for the 1997-98 school year after its proposed budget was rejected by voters. The board also scheduled a special district meeting on September 10, 1997 to permit district voters to vote on three propositions that would add additional funds to the contingency budget for certain specified purposes. Proposition 1 authorized funding for interscholastic athletics, field trips and community use of schools; Proposition 2 authorized funding for computer equipment for students; and Proposition 3 authorized funding for the purchase of two new school buses, playground renovation and new equipment and furniture. Proposition 1 was approved by a vote of 1211 to 1087. Propositions 2 and 3 were defeated by votes of 1197 to 1032 and 1216 to 1012, respectively.

Petitioner Schadtle commenced his appeal by service of a copy of his petition on respondents on September 23, 1997. Petitioner Wilcox commenced her appeal on October 6, 1997.

Petitioners allege that respondents improperly permitted the use of school district personnel, property, facilities, equipment and funds to advocate for adoption of the propositions. Petitioners also allege that respondents improperly attempted to increase the participation at the special district meeting of certain "targeted" groups of voters who were likely to vote in favor of the propositions. Petitioners request that respondents be directed to cease and desist from such improper conduct and that respondents be further directed to designate a person at each school building to review and approve materials sent home with students to ensure compliance with the Commissioner's directives. Petitioner Wilcox also requests that I void the results of the September 10, 1997 vote or, in the alternative, that I void the result of the vote on Proposition 1 and order a new election. On October 10, 1997, I denied petitioner Schadtle's request for a stay pending a final decision in this appeal. On October 27, 1997, I denied petitioner Wilcox's request for a stay.

Respondents deny petitioners' allegations and contend that the appeal should be dismissed as untimely with respect to any acts referenced in the petition that occurred more than 30 days prior to the commencement of petitioners' appeals. Respondents also contend that since petitioner Schadtle does not seek to overturn the results of the vote on September 10, 1997, his appeal should be dismissed as moot and for lack of standing. Respondents similarly contend that portions of petitioner Wilcox's appeal should be dismissed as moot and for lack of standing.

In general, an appeal to the Commissioner must be instituted within 30 days of the making of the decision or the performance of the act complained of (8 NYCRR "275.16). However, with respect to appeals involving school district elections, I have held that it would be unreasonable and detrimental to the efficient resolution of a petitioner's claims to require that petitioner institute separate appeals with respect to acts comprising a series of events closely related to an election, so as to meet the 30 day requirement set forth in "275.16 (Appeal of Rampello, 37 Ed Dept Rep 153). In such circumstances, even though the appeal involves acts occurring more than 30 days from the date the appeal was commenced, I have declined to dismiss the appeal as untimely provided that the appeal was commenced within 30 days of the election. Petitioners' appeals were both commenced within 30 days of the September 10, 1997 vote. Accordingly, I decline to dismiss as untimely those portions of petitioners' appeals which include allegations and exhibits relating to acts taken with respect to the September 10, 1997 vote, but which occurred more than 30 days before commencement of the appeals.

Respondents contend that the appeals must be dismissed as moot with respect to votes or actions taken in previous elections. However, while petitioner Wilcox makes allegations and submits exhibits relating to previous elections, she does so only with respect to the September 10, 1997 vote in an attempt to show a pattern of alleged improper activity by respondents and not to challenge the results of those previous elections. Therefore, I decline to dismiss such allegations and exhibits as moot but will consider them only in so far as they relate to the September 10, 1997 vote.

Respondents contend that petitioner Schadtle lacks standing to bring his appeal. Although petitioner Schadtle does not seek to overturn the results of the vote taken at the September 10, 1997 special district meeting, he challenges certain actions taken by respondents with respect to the special district meeting. Petitioner Schadtle's status as a district resident is sufficient to maintain his appeal with respect to the manner in which respondents conducted the special district meeting (Appeal of Gravink, 37 Ed Dept Rep 393; Appeal of Waitkins, 26 id. 263).

Respondents further contend that petitioner Schadtle's appeal should be dismissed as moot because he does not challenge the results of the September 10, 1997 vote. However, petitioner Schadtle contends that respondents have engaged in allegedly improper activity that is likely to continue. Therefore, I do not find his appeal to be moot.

Petitioners allege that respondents permitted the school district to use an automatic telephone device to send pre-recorded messages to parents and guardians of students urging them to vote at the September 10, 1997 special district meeting. Petitioners contend that such activity is improper and a misuse of district property and personnel because respondents have targeted parents and guardians as a select group who are more likely to vote for the propositions. Respondents deny "urging" the public to vote in either a general or specific manner, but admit that on September 8, 1997 respondent superintendent made telephone calls to district residents, using the district's automatic calling system, to inform them of the upcoming vote on the three propositions. Respondents further admit that the telephone numbers logged into the automated phone system included only those residents of the school district who have children registered in the school system.

It is unclear from the record whether the pre-recorded messages advocated in favor of the propositions. However, regardless of whether a partisan message or neutral information on the time, date, place and subject of the vote was conveyed, it is improper for respondents to make telephone calls using a selective list of district voters, such as a list of residents of the district with children enrolled in public schools, who are likely to support the adoption of the propositions because such activity affords the appearance of impermissible partisan activity (Appeal of The San Remo Civic Association, Inc., 28 Ed Dept Rep 175; Matter of Canham, 19 id. 254). Accordingly, respondents are directed to refrain from such activity in future elections.

In addition to the telephone calls, petitioners allege that respondents used mailings and other printed materials to improperly target groups likely to vote yes, in an attempt to increase their turn out at the election. Respondents deny petitioners' allegations concerning targeting and contend that such communications were merely part of a general effort to provide information to district residents concerning the special district meeting. The encouragement of the electorate to exercise the franchise is not improper perse, but a district must not engage in partisan activity during the conduct of an election (Appeal of The San Remo Civic Association, Inc., supra).

It appears from the record that on August 28, 1997, separate letters from respondent superintendent, dated August 15, 1997 and accompanied by an informational flyer, were mailed to parents and guardians of children enrolled in the public schools and private/parochial schools. It further appears that an informational letter from respondent superintendent, dated August 1997 and addressed to parents of students, was included in the district's calendar for the 1997/98 school year. While respondent superintendent states that the calendar is available to all district residents "upon request", it appears that, in the first week of September, he conducted a general, systematic mailing of such materials only to district residents having children registered in the school system. In addition, a letter from the high school principal, dated August 14 1997 and addressed to parents and high school students, included a short paragraph relating to the September 10, 1997 vote and was mailed to parents and guardians on August 15, 1997. This was followed by the mailing on August 28, 1997 of a second letter from the principal, dated August 27, 1997 and addressed to high school students, which also included a paragraph relating to the September 10 vote. Furthermore, on or about September 8, 1997 informational flyers prepared by the school district were sent home with students attending the district's K-1 grade school and the 2-3 grade school. In addition to the above communications, it also appears from the record that respondents made a district-wide distribution providing information on the September 10, 1997 special meeting, by means of the August 1997 district newsletter mailed to each district resident.

The burden of proof in an appeal to the Commissioner rests with the petitioner (Appeal of Gravink, supra). The record before me does not establish that respondents intentionally sought to increase the turnout of selected groups as more likely to support the propositions. Instead, it appears that respondents merely attempted to encourage all district residents to participate in the September 10, 1997 vote. Since the determination of whether a school district engaged in targeting is a question of fact dependent upon the circumstances of each case, I do not find that any distribution of election information on a less than district-wide basis constitutes impermissible targeting perse. Nevertheless, the use of specialized mailings or distributions to parents of students or other selected groups may in some instances suggest the appearance of partisan activity (Appeal of Sowinski, 34 Ed Dept Rep 184; Appeal of Bayly and Rogers, 30 id. 442), and I remind respondents of the prohibition against targeting and I advise respondents that it is their responsibility to inform all district residents, not only parents of students, of upcoming elections and votes.

Petitioners also allege that certain materials distributed by respondents improperly included partisan information relating to the three propositions. Although a board of education may provide informational material to the voters concerning a proposed budget or proposition (Education Law "1716), the Court of Appeals held in Phillips v. Maurer, 67 NY2d 672, that school district funds may not be used to exhort the electorate to support a particular position. Statements that do not specifically urge a "yes" vote may nevertheless violate the holding in Phillips v. Maurer if such statements otherwise seek to persuade or convey support for a particular position (Appeal of Gravink, supra; Appeal of Rampello, supra). Even indirect support, such as a school board providing a PTA access to its established channels 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 Saba, 36 Ed Dept Rep 233; Appeal of Allen II, 32 id. 69).

I have examined the election materials submitted as exhibits to the petitions, and while I find that for the most part they contain only content-neutral information with respect to the date, time, place and purpose of the vote, certain information impermissibly advocates for approval of the propositions. In respondent superintendent's August 15, 1997 letter to private and parochial school parents, he describes the purposes of the propositions and concludes with the sentence: "Unfortunately, with a school budget defeat and the adoption of an austerity budget, we are not able to make these purchases or provide the services as stated above without voter authorization [emphasis added]". The use of "unfortunately", in the context of the letter, could be construed as improper advocacy on behalf of the propositions and the use of such term or similar language should be avoided.

The Woodlands High School principal's August 27, 1997 letter included the following paragraph:

I find that this paragraph, albeit in an indirect, subtle manner, goes beyond providing content-neutral information and constitutes improper advocacy in favor of adoption of the propositions, particularly in its use of the phrase "support our school and district".

The record indicates that on or about September 8 or 9, 1997, a PTA-sponsored flyer containing information about the vote was distributed by teachers to students attending the district's 2-3 grade school to take home to their parents. It also appears that sometime in August 1997, a PTSA flyer on the September 10th vote and an informational flyer relating to voter registration were inserted into a general informational mailing to parents of middle school students. The PTA flyer contains language that improperly advocates in favor of one of the propositions, in that it states an opinion that repairs and renovations to the Highland playground are "necessary" and that new school buses are "badly needed". The PTSA flyer also impermissibly advocates in favor of the propositions as follows: "Sports, after-school activities, and school trips are an essential part of a good middle school program...The loss of these programs will have a negative effect on the education of our middle school children. We urge you to support these programs..." Therefore, I find that respondent's facilitation of the distribution of these partisan materials constitutes an impermissible use of established district channels of communication to parents (Stern v. Kramarsky, supra; Appeal of Saba, supra; Appeal of Allen, supra; Appeal of Davis, et al., 30 Ed Dept Rep 366). However, petitioners' additional contention that the PTA flyer's use of a checkmark after the phrase "PLEASE VOTE" must be construed as meaning "VOTE YES" is speculative and without merit.

I also find that the August 1997 district newsletter includes a letter from the president of the board of education to district residents that contains certain opinions which, in the context of the letter, improperly advocate in favor of the propositions: "Sports, clubs, the school newspaper, yearbook and many other activities contribute to the well rounded education of our students. Without voter approval, the district cannot provide funding or transportation for activities beyond the regular school day"; "The purchase of computers and the upgrading of our computer labs are needed to make all our students computer literate"; "A program of continual replacement of buses maintains a safe fleet"; and "The Highview playground has been in need of upgrading for several years."

Petitioners also object to respondent's permitting the posting of signs in some of the windows of district school buses as improper targeting of groups likely to vote in favor of the propositions. However, petitioners' contention that such signs were meant for parents of students is entirely speculative and without merit. Furthermore, the signs were content-neutral and merely provided information on the date and time of the vote on the propositions and a reminder to "vote".

Petitioner Wilcox requests that I void the results of the special district meeting. To invalidate the results of a school district election, a petitioner must establish not only that irregularities occurred, but also that the irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Meyer, et al., 38 Ed Dept Rep 285; Appeal of Santicola, 36 id. 416), were so pervasive that they vitiated the electoral process (Appeal of Roberts, 33 Ed Dept Rep 601; Matter of Gilbert, 20 id. 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 subnom, Capobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 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, 35 Ed Dept Rep 126; Appeal of Roberts, supra). The burden of proof on these elements rests with the petitioner (8 NYCRR "275.10; Appeal of Gravink, supra).

Upon my examination of the record, I find that petitioner Wilcox has failed to meet her burden of proof so as to require that the results of the special meeting be set aside. Petitioner Wilcox's allegation that the communications directed toward groups likely to vote yes "changed the composition" of the voters and thus enabled Proposition 1 to pass is entirely speculative, and is undermined to some degree by the fact that, despite the alleged "targeting", Propositions 2 and 3 were defeated. Furthermore, while certain partisan materials were improperly distributed to voters, there is nothing in the record to establish that such distribution affected the results of the vote. Based upon the record before me, I find no basis to overturn the results of the September 10, 1997 vote.

THE APPEALS ARE SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondents refrain from using district resources to advocate a partisan position with respect to matters that are the subject of a school district vote in accordance with the terms of this decision.

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