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Decision No. 14,176

Appeal of BENNETT WEISS from action of the Board of Education of the Enlarged City School District of the City of Newburgh regarding the expenditure of public funds.

Decision No. 14,176

(July 28, 1999)

Shaw & Perelson, LLP, attorneys for respondent, David S. Shaw and Margo L. May, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges certain expenditures and actions by the superintendent and the Board of Education of the Enlarged City School District of the City of Newburgh ("respondent") relating to a bond referendum. The appeal must be dismissed.

On February 9, 1999 a meeting was held at the Newburgh Free Academy ("NFA") to discuss "Phase II" of NFA's proposed expansion, including additions and renovations to the school. The agenda for the February 9 meeting consisted of: (1) an introduction by Dr. Laval S. Wilson, the district's superintendent; (2) a review of Phase I and highlights of Phase II of the school expansion project; (3) a visual overview of Phase II; and (4) a question and answer period. During his introductory remarks, Dr. Wilson stated that the meeting would be "a pep rally to get the community to support the Phase II construction program for $17.5 million." However, the remainder of his remarks, as well as the remarks of the other speakers, were informational in tone and substance, describing how the bond money, if approved, would be utilized. This meeting was one of approximately ten such meetings held between October 1998 and February 1999, conducted with the stated purpose of informing the electorate about the proposed expansion of NFA. Approximately 40 people attended the February 9 meeting.

On February 18, 1999 the district's Central Compact Committee ("the Committee"), formed pursuant to 8 NYCRR "100.11, met for their regularly scheduled session. At that meeting, respondent's representative board member, Mr. Woodhull, asked those present to support the upcoming bond issue. This meeting was attended by approximately 20 people.

On March 3, 1999, respondent conducted a bond referendum on the NFA proposal. The voters of the district approved the referendum by a vote of 1,872 in favor, 1,484 against. This appeal ensued.

Petitioner contends that respondent, by holding a "pep rally," improperly used taxpayer resources to exhort voters to support the bond referendum. Similarly, petitioner maintains that Mr. Woodhull, by speaking in his official capacity as a board member, misused his office when he sought support for the bond issue at the February 18 meeting of the Committee. In support of his petition, petitioner submits the sworn statement of an individual in attendance at the February 9 meeting and videotape recordings of that meeting. Petitioner requests that I order respondent to refrain from "using its human and material resources to appeal directly to the voters to vote in favor of a budget or bond issue" and that I "rule that 'pep rallies' held expressly for such purposes are not to be conducted on school grounds by school personnel acting in their official capacity." Petitioner does not seek to overturn the results of the referendum.

Respondent maintains that petitioner's appeal must be dismissed on a variety of grounds. Specifically, respondent contends that petitioner improperly seeks an advisory opinion; fails to establish a clear legal right to the relief requested; and fails to establish that any irregularities occurred in the conduct of the referendum or that any such irregularities actually affected the outcome of the election. Respondent further maintains that neither Dr. Wilson nor Mr. Woodhull improperly used his office or district resources to exhort voters to support the bond referendum.

Before reaching the merits, I must address several procedural issues. The first such issue relates to petitioner's reply. Under 8 NYCRR "275.14, a reply must be served within ten days of the answer. Respondent served its answer by mail on March 30, 1999 and petitioner served his reply by mail on April 26, 1999, more than ten days after service of the answer. The main purpose of petitioner's reply is to submit videotape recordings of the February 9 meeting. I note that petitioner specifically requested, in his petition, that he be allowed to belatedly submit the videotape recordings because he had not received them from respondent as of the date he commenced this appeal. Since it appears that he submitted the videotapes promptly upon receipt, I will accept his late reply.

This appeal must be dismissed because petitioner fails to seek a cognizable remedy. Petitioner does not seek to overturn the results of the March 3 referendum. Rather, petitioner requests that I order respondent to cease using its resources in exhorting the voters to support the bond referendum and that I issue a ruling declaring that pep rallies are not to be conducted on school grounds by school personnel acting in their official capacity. To the extent that petitioner requests that I order respondent to refrain from appealing to the district's voters, the issue is now moot, since the election has already occurred and the outcome has been determined.

I also decline to grant petitioner's request for a ruling that "pep rallies" may not be held on school grounds by school personnel acting in their official capacity. The issue of what constitutes an impermissible "pep rally" as opposed to a legitimate informational meeting is fact specific, and must be decided on a case by case basis. As such, I decline petitioner's request to issue a "ruling" on this matter. Furthermore, because petitioner does not seek to have the results of the vote set aside, 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 Lambert, 37 Ed Dept Rep 599, Decision No. 13,937; Appeal of a Student with a Disability, 37 Ed Dept Rep 307, Decision No. 13,864). Therefore, the appeal must be dismissed.

Although, I am dismissing this appeal, the facts of the 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, Decision No. 13,042; Appeal of Bosco, 32 id. 554, Decision No. 12,912), 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, Decision No. 12,761). 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, Decision No. 12,927; 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.