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Decision No. 14,124

Appeal of CAROLE LAWSON from action of the Board of Education of the Hicksville Union Free School District regarding the conduct of an election.

Decision No. 14,124

(May 8, 1999)

Guercio & Guercio, attorneys for respondent, Gary L. Steffanetta, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Hicksville Union Free School District ("respondent") concerning the district's May 1998 election. The appeal must be dismissed.

Petitioner contends that respondent improperly used the school district’s channels of communication and district funds to disseminate partisan literature prior to the annual budget vote on May 19, 1998. Petitioner seeks the removal of respondent board and the superintendent of schools pursuant to Education Law "306 for allegedly misusing funds, wilfully disobeying an earlier decision and order of the Commissioner, violating the Family Educational Rights and Privacy Act ("FERPA," [20 U.S.C. "1232g] et seq.), and violating the Education Law. Petitioner also claims that a PTA member engaged in improper electioneering at the Burns Avenue School on the day of the election. Petitioner requests that I permanently enjoin the district from disseminating political literature, void the budget proposition approved at the May 19 election, and order a new election.

Respondent asserts that the petition must be dismissed because petitioner failed to join necessary parties, failed to meet her burden of demonstrating a legal right to the relief requested, and failed to prove that respondent or the superintendent wilfully disobeyed the Commissioner’s earlier decision. Respondent also contends that petitioner failed to prove improper conduct by respondent, or that any alleged irregularities affected the outcome of the election. Finally, respondent asserts that the Commissioner lacks jurisdiction over alleged FERPA violations.

As a threshold matter, the appeal must be dismissed for failure to join necessary parties to the appeal. Petitioner seeks the removal of respondent’s members and Superintendent Dr. Edward J. Finn. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Heller, 38 Ed Dept Rep 335; Appeal of Davis, 37 id. 17). Section 275.8 of the Commissioner's regulations requires that a copy of the petition be personally served upon each named respondent. An individual must also be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respondent to the petition and enter a defense (Appeal of Heller, supra). It is the notice of petition which alerts a party to the fact that he or she is required to appear in the appeal and to answer the allegations contained in the petition (8 NYCRR ""275.11, 275.13; Application of the Board of Education of the Ardsley Union Free School District, 38 Ed Dept Rep 221; Appeal of Osterman, 30 id. 290).

Petitioner seeks to remove the members of respondent board and the superintendent of schools. Thus, the rights of these individuals would clearly be affected if the petition were granted. In the instant appeal, neither Superintendent Finn nor any individual member of respondent board was named as a respondent in the caption of the petition or in the notice of petition such that he or she would have been on notice that he or she was intended to be a party to the appeal and was required to submit an answer. The appeal must, therefore, be dismissed for failure to join necessary parties.

The appeal is also dismissed on the merits. Although a board of education may provide informational material to district 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. 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 Meyer, et al., 38 Ed Dept Rep 285; Appeal of Saba, 36 id. 233; Appeal of Allen, 32 id. 69).

The thrust of petitioner’s appeal is that respondent and Superintendent Finn not only improperly used district funds and resources to disseminate political literature advocating adoption of the budget, but also by doing so, wilfully disobeyed my decision and order in an earlier appeal involving this petitioner and respondent and the dissemination of campaign literature (Appeal of Lawson, 36 Ed Dept Rep 450). In that case, petitioner alleged that respondent’s then vice-president had her daughter deliver envelopes, containing letters from the Band Parents’ Association (BPA) urging support of the budget, to school music teachers, who directed students during class time to address the envelopes to their parents. I found that there was no evidence that district funds had been used to produce the letter. However, because students were directed by teachers to address the letter during class, it appeared that district resources had been used to help distribute the partisan letter. I admonished respondent to "take affirmative steps to ensure that teachers and staff do not espouse to students on school time partisan positions on matters pending before the voters, and that the district does not lend indirect support to partisan activities through its communications channels."

Petitioner contends that respondent and Dr. Finn wilfully violated my earlier decision by improperly using the school district’s funds and channels of communication to disseminate partisan literature prior to the annual budget vote on May 19, 1998. Petitioner states that on May 18, she received newsletters from both the Hicksville Middle School PTSA and High School PTSA. Half of the Middle School newsletter contained messages from the PTSA president, the principal and two assistant principals. The other half contained PTSA-related material, including an entire page advocating a "yes" vote for the budget. The High School newsletter similarly contained messages from the PTSA president, the principal, PTSA-related material and the same full-page endorsement. Petitioner asserts that it is the district’s policy to print the newsletters for PTSA groups and use them as channels of communication. She also asserts that the district supplied the mailing labels for both newsletters. She claims that the mailing label on the Middle School newsletter is identical to that used on envelopes mailed from the district, and the mailing label on the High School newsletter contained her daughter’s student identification number, assigned by the district.

Respondent and Dr. Finn deny that they wilfully disobeyed my earlier decision and order. Contrary to petitioner’s allegations, respondent maintains that it charged Dr. Finn with the responsibility of insuring that district staff followed the directives of the earlier decision, and that Dr. Finn took numerous steps to do so. According to the record and his affidavit, Dr. Finn avers that he advised principals and supervisors that no literature advocating a position on the school budget vote was to be duplicated or handed out to students; the deputy superintendent would review all PTA newsletters and flyers copied at the administration building; the PTA was requested to state on any electioneering material that it was "paid for by PTA funds;" and all staff should avoid advocacy of partisan positions.

Respondent further maintains that petitioner fails to allege that the PTSA newsletters were produced on school time or with school resources. To the contrary, respondent asserts that the newsletters each clearly state the "this publication has been prepared by volunteers and is funded by a portion of your PTSA dues." Moreover, respondent asserts that the return address on each newsletter is the "Hicksville Counsel of PTAs" and the postage is paid under the PTA’s bulk permit rate.

Petitioner’s remaining allegation is that the mailing labels on the newsletters are similar to those on other mail from the district. Respondent admits that the district has historically supplied mailing labels to the High School and Middle School PTSAs for their non-partisan activities and Dr. Finn states that labels were requested prior to the printing of the PTSA newsletters in question. However, he also states that he had no knowledge of the purpose for which the labels were requested. In addition, respondent asserts that the use of mailing labels alone is insufficient to prove the district’s financial support of partisan activities.

Education Law "306 authorizes the Commissioner of Education to remove a superintendent of schools as well as a member of a board of education for wilful violation or neglect of duty under the law. To be considered wilful, respondents' actions must have been intentional and with a wrongful purpose (Appeal of Todd, 37 Ed Dept Rep 419; Appeal of Rampello, 37 id. 153; Application of Brousseau, 35 id. 291). In her reply, petitioner argues that there are no minutes from respondent’s meetings or other substantiating evidence demonstrating that direction was given to Dr. Finn to comply with the Commissioner’s earlier decision. Similarly, petitioner claims that without an affidavit from a PTSA member or other receipts, respondent’s statement that the PTSA paid for the newsletter is unsubstantiated. However, petitioner has the burden of establishing the facts upon which she seeks relief (8 NYCRR " 275.10; Appeal of Samuels, 36 Ed Dept Rep 85; Appeal of Nash, 35 id. 203). Petitioner fails to establish that respondent or Dr. Finn took any action that was intentionally performed with a wrongful purpose to disregard a lawful duty or violate a legal requirement. To the contrary, affidavits from members of respondent board and Dr. Finn state that Dr. Finn was directed to take affirmative steps to address the earlier admonishment. In addition, the newsletters on their face state that they were prepared by volunteers and paid for with PTSA dues. Petitioner thus fails to establish any intentional wrongdoing on the part of respondent board members or Dr. Finn, and consequently, fails to establish any grounds for their removal under Education Law "306 (Appeal of Todd, supra).

Respondent also maintains that the election results should not be overturned because petitioner has failed to prove improper conduct by respondent, or that any alleged irregularities affected the outcome of the election. To invalidate the results of a school district election, 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; Davis v. Commissioner of Education, 189 Ad2d 1046; Appeal of Chechek, 37 Ed Dept Rep 624; 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 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 an 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; Appeal of Como, et al., 28 id. 483). Further, mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Krantz, 37 Ed Dept Rep 257; Appeal of Kushner, 36 id. 261; Appeal of Young, 26 id. 272).

Petitioner has failed to meet her burden of proof. Petitioner argues that since newsletters were mailed to 2455 students in the middle and high schools and the budget was approved by a vote of 2220 to 1237 (a difference of 983), the alleged irregularities must have affected the outcome of the election. Petitioner’s speculation has no factual basis, as she fails to present any evidence that any voter would have voted differently but for the newsletter or any other alleged irregularity. Nor has she shown a laxity in adherence to the Education Laws or pervasive irregularities vitiating the fundamental fairness of the election.

Petitioner also contends that a vehicle bearing campaign signs in support of two candidates, allegedly parked within 100 feet of the entrance to the Burn Avenue School polling place, affected the outcome of the election. While petitioner submits an affidavit from an individual stating that she saw the vehicle in question, petitioner fails to submit any affidavits from any voter claiming to be adversely influenced by the signs in the vehicle.

Finally, the United States Secretary of Education, and not the Commissioner of Education, has jurisdiction over alleged violations of FERPA (Appeal of Schuler, 37 Ed Dept Rep 512).

In light of this disposition, I need not address the parties’ remaining contentions.

However, I must again admonish respondent to take all necessary steps to ensure the integrity of the election process. While the district took steps to implement my earlier order, they were apparently insufficient to fully protect against the improper use of district resources to advocate a partisan position. The district must be accountable for how its resources (such as mailing address labels) are being used. It is simply not enough to provide resources to a third party without regard to how they will be used. Respondent should review its policies on elections and the use of district resources and determine whether further safeguards are necessary.