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Decision No. 14,130

Appeal of PAUL N. PRENTICE from actions of the Board of Education of the Hyde Park Central School District and the Superintendent of Schools regarding election irregularities.

Decision No. 14,130

(May 19, 1999)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondents, Daniel Petigrow, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the actions of the superintendent and the Board of Education of the Hyde Park Central School District ("respondents") relating to the district’s May 19, 1998 budget vote. The appeal must be dismissed.

On April 2, 1998, respondents published, in nine official newspapers within the district, a notice informing district residents that a budget hearing would be held on May 11, 1998 to present the district's proposed 1998-99 budget. On or about May 2, 1998, the district clerk distributed copies of the proposed budget to every school building in the district. At the district's budget hearing on May 11, 1998, Clifford Ong, the district's Support Services Administrator, made a formal presentation of the proposed budget, and responded to questions from district residents in attendance. Petitioner, who was present at the May 11 hearing, specifically questioned the computation of the average yearly cost per household in the proposed budget. Respondents subsequently published a full-page advertisement on the proposed budget in the Sunday edition of the Poughkeepsie Journal on May 17, 1998. The advertisement notified the public of the imminent election and publicized a condensed version of the proposed budget. A statement regarding the budget’s average yearly cost per household -- the same information which petitioner and the others had received at the May 11 hearing -- was also included in the advertisement.

The election was held on May 19, 1998, and the budget was approved by a vote of 1,526 in favor to 1,232 against.

Petitioner alleges that respondents distributed false and misleading information regarding the budget in an attempt to persuade voters to approve it. Specifically, petitioner contends that the statement concerning the budget’s average yearly cost per household was inaccurate and misleading, and consequently resulted in a lower voter turnout than in previous years. Petitioner also contends that the May 17, 1998 newspaper advertisement was published in an untimely manner and did not allow the electorate sufficient time to challenge its contents before the election. Petitioner requests that I invalidate the budget vote and order a new election.

Respondents raise a number of procedural defenses, including lack of jurisdiction, untimeliness and failure to state a claim. Respondents also maintain that their actions were proper and that they did not engage in unlawful electioneering.

As a preliminary matter, petitioner seeks to bring this appeal on behalf of "the residents in the Town of Hyde Park with special emphasis on the senior and fixed income citizens whose fixed income is being diminished by this budget vote." An appeal may only be maintained on behalf of a class "where the class 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" (8 NYCRR "275.2; Appeal of Astafan, 36 Ed Dept Rep 463; Appeal of Czerepak, 31 id. 448). Petitioner must set forth the number of individuals he seeks to represent (Appeal of Lambert, 37 Ed Dept Rep 599; Appeal of Astafan, supra; Appeal of Sperl, 33 Ed Dept Rep 388) and show that all questions of law and fact would be common to all members of the class (Appeal of Astafan, supra; Appeal of Donnelly, 33 Ed Dept Rep 362). Petitioner has not made this showing. Therefore, class status is denied.

With respect to the question of jurisdiction, the appeal must be dismissed as against the superintendent. Section 275.8 of the Commissioner’s Regulations requires that each respondent be personally served with a copy of the petition, and provides for alternative methods of service in the event that personal service is not possible. In this case, petitioner served only the district clerk, thereby effectuating service on the board of education alone (8 NYCRR "275.8). Therefore, to the extent that the petition requests that I take action against any respondents other than respondent board, such claims must be dismissed for failure properly to join such individuals as parties to the appeal (Appeal of Duffy, 36 Ed Dept Rep 257; Appeal of Kriaris, 31 id. 353; Appeal of Healy, 29 id. 391).

The appeal is also untimely. An appeal to the Commissioner of Education must be instituted within thirty days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). This appeal, which challenges a vote that was taken on May 19, 1998, was commenced on July 1, 1998 by the service of the notice of petition and petition upon respondent board. Petitioner asserts that his late filing was due to the failure of the Commissioner’s staff to provide him with a copy of the Commissioner’s Regulations in a timely manner, suggesting, therefore, that he was ignorant of the appeals process. However, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Saeger, 31 Ed Dept Rep 528; Appeal of Pitney Bowes, Inc., 31 id. 290; Appeal of Casid, 30 id. 332). I find no unusual circumstances to excuse the delay. Thus, the appeal must be dismissed as untimely (Appeal of Saeger, supra).

Regarding the merits, there is a presumption of regularity in the conduct of an election (Appeal of Morris, et al., 37 Ed Dept Rep 590). The Commissioner of Education will not set aside the results of a school district election in the absence of evidence that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, 32 AD2d 990, aff’d 26 NY2d 709; 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’dsubnomMatter of Capobianco v Ambach, 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 Roberts, supra; Appeal of Como, et al., 28 Ed Dept Rep 483). Petitioner has the burden of establishing all the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Pickreign, 28 Ed Dept Rep 163) and, on the claims before me, petitioner has not met that burden.

Petitioner contends that the budget vote must be annulled because school district funds were used to urge a particular vote in favor of the budget. While a board of education has the right to present information to the voters concerning a proposed annual budget (Education Law "1716), the Court of Appeals has held in Matter of Phillips v Maurer, 67 NY2d 672, that school district funds may not be used to exhort residents of the district to vote in favor of a budget or proposition advocated by the board. My review of the newspaper advertisement in question, however, indicates no basis to overturn the election on that ground. The printed advertisement contains information that is factual in nature and does not exhort the voters to vote in a particular manner. In my opinion, the advertisement does not contain subjective statements as to the views of respondents or the desirability of voter approval. Rather, it properly explained in a factual manner the focal points of the proposed budget, stated the estimated expenditures for the 1998-99 school year, and notified the voters of the scheduled budget vote.

Further, petitioner’s assertions that voters were misled and would have voted differently but for the information contained in the May 17, 1998 advertisement is without foundation. As noted above, petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Pickreign, supra). I will not set aside the results of a school district vote in the absence of evidence of the probability that the alleged irregularities affected the outcome of the election (Matter of Boyes v Allen, supra; Appeal of Brower, 29 Ed Dept Rep 145). Here, petitioner does not offer the affidavit of even one voter asserting that the voter would have voted differently but for the information in the challenged advertisement. Rather, petitioner’s allegations are merely speculative and conclusory and do not warrant overturning the election (Appeal of Donnelly, 33 Ed Dept Rep 362; Appeal of Ben-Reuben, et al., 33 id. 299; Appeal of Pickreign, supra).

Finally, petitioner’s claim that the challenged advertisement did not afford the voters sufficient notice of the information contained therein is disingenuous and unsupported by the facts on the record. The specific information which petitioner challenges concerns the reference in the advertisement to the budget’s average yearly cost per household. However, the record shows that this same information was provided to petitioner and the district’s residents at the budget hearing on May 11, 1998, notice of which was advertised in all the official publications of the district. The voters, therefore, were afforded an adequate opportunity to ask questions and comment on the specifics of the proposed budget, including the statement which petitioner challenges.

I have reviewed petitioner’s remaining contentions and find that they do not provide a basis to set aside the results of the election.