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Decision No. 14,300

Appeal of KEVIN R. ALLEN from action of the Board of Education of the Sauquoit Valley Central School District and the Superintendent of Schools regarding an annual meeting and election.

Decision No. 14,300

(February 11, 2000)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Frank Miller, Esq., of counsel

MILLS, Commissioner.--Petitioner, an unsuccessful candidate for election to the Board of Education of the Sauquoit Valley Central School District, appeals certain actions allegedly taken by the board and the superintendent of schools with respect to an annual meeting and election held on May 18, 1999. The appeal must be dismissed.

Petitioner alleges that the bulk mail permit of Elwin S. Shoemaker, a member of the board of education, was improperly used to disseminate the campaign literature of two successful candidates for election to the board at the May 18th election, Daniel Stedman and Mary Jo Parker. Petitioner alleges that the funds used to pay for the mailing of the campaign literature were not provided by Mr. Stedman, Ms. Parker or Mr. Shoemaker and that Mr. Shoemaker acted as a conduit for campaign funds to the two successful board candidates. Petitioner further alleges that school district resources were improperly used to the extent that mailing labels produced at district offices were affixed to the campaign literature of Mr. Stedman and Ms. Parker.

Petitioner requests that I direct that a new election be held to fill the two board member seats and that I conduct an investigation into the actions cited in the petition. By letter dated July 1, 1999, I denied petitioner's request for interim relief to prevent the newly elected board members from assuming office, pending a final determination of this appeal.

Respondent denies petitioner’s allegations and contends that the appeal should be dismissed as untimely, for failure to join necessary parties, and on the merits.

Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be instituted within 30 days from the making of the decision or the performance of the act complained of. Petitioner complains of certain actions taken by respondents with respect to an election held on May 18, 1999. However, petitioner did not commence this appeal until June 21, 1999 by service of a copy of the petition on the school superintendent, who is also the district clerk. Petitioner states that the petition was delivered to the Marshall for the City of Utica on June 16, 1999 for service on respondents, but that the Marshall's Office was unable to make service on the superintendent until June 21, 1999. Contrary to petitioner's assertion in his reply, the delivery of the petition to the process server within the thirty-day statute of limitations period does not toll the statute of limitations. A copy of the petition must be served upon each of the respondents within 30 days of the making of the decision or the performance of the act complained of, or petitioner must establish good cause to excuse the late service (8 NYCRR "275.16; Appeal of Bosco, et al., 32 Ed Dept Rep 554, Decision No. 12,912). Petitioner does not provide an affidavit from the process server, or any other proof, to substantiate his statement and explain the reason service could not be made until June 21, 1999. Accordingly, the appeal is dismissed as untimely.

In addition to being untimely, the appeal must also be dismissed for failure to join Mr. Stedman and Ms. Parker as necessary parties. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Karliner, 36 Ed Dept Rep 30, Decision No. 13,644; Appeal of Garard, 36 id. 15, Decision No. 13,638). When an appeal involves the validity of an election, each successful candidate whose right to hold office is disputed must be joined as a respondent (8NYCRR "275.8[d]; Appeal of Neufang, 38 Ed Dept Rep 567, Decision No. 14,095; Appeal of Heller, 38 id. 335, Decision No. 14,048). The relief petitioner seeks, a new election, if granted would adversely affect the rights of Mr. Stedman and Ms. Parker, the successful candidates. Therefore, they are necessary parties and petitioner's failure to join them requires dismissal.

The appeal must also be dismissed on the merits. To invalidate the results of a school district election, petitioner must establish not only that an irregularity occurred, but that the irregularity actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Brown, 38 Ed Dept Rep 816, Decision No. 14,151; Appeal of Santicola, 36 id. 416, Decision No. 13,765), were so pervasive that they vitiated the electoral process (Appeal of Roberts, 33 id. 601, Decision No. 13,162; Matter of Gilbert, 20 id. 174, Decision No. 10,366), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Matter of Levine, 24 id. 172, Decision No. 11,356, 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 district election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Morris, et al., 37 Ed Dept Rep 590, Decision No. 13,936; Appeal of Goldman, 35 id. 126, Decision No. 13,487; Appeal of Roberts, supra). Petitioner has the burden of establishing all the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Gravink, 37 Ed Dept Rep 393, Decision No. 13,888; Appeal of Pickreign, 28 id. 163, Decision No. 12,067).

Petitioner has not met this burden. First of all, petitioner has failed to establish that the use of the board member's bulk mail permit was in any way improper. It is unclear from the record as to whether the permit was issued to Mr. Shoemaker in his individual capacity or as a board member. While it is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election, individual board members are entitled to express their views about issues concerning the district and engage in partisan activity, provided school district funds are not used (Application of Dinan, 36 Ed Dept Rep 370, Decision No. 13,752; Appeal of Carroll, 33 id. 219, Decision No. 13,030; Appeal of Weaver, 28 id. 183, Decision No. 12,076). Therefore, it is not improper for a board member to allow the use of his privately issued bulk mail permit for partisan activity relating to a school district election. While the use of a permit issued to a school district or purchased with district funds for partisan activities would be improper, there is nothing in the record to establish that this occurred. Even if such facts were established, petitioner has failed to demonstrate, or even allege, that such activity actually affected the outcome of the election.

Petitioner also alleges that district resources were misused because mailing labels generated by the district were affixed to campaign literature used to promote the election of the successful board candidates, Daniel Stedman and Mary Jo Parker. School district funds may not be used to exhort the electorate to support a particular candidate or position (Phillips v. Maurer, 67 NY2d 672). 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, Decision No. 13,710).

Petitioner has submitted copies of campaign materials and a district newsletter as exhibits to his petition. While the type font and format of the mailing labels attached to campaign materials appear to be very similar, if not identical, to the mailing label found on a district newsletter, there is nothing in the record which establishes that respondents intentionally provided district generated mailing labels to the Stedman and Parker campaigns for partisan political purposes.

However, it appears from the record that it has been the district’s practice to make lists of district residents and district generated mailing labels available to various school groups, such as the PTA, Teachers’ Associations and other groups. Respondents deny any affirmative actions on their part to use district generated lists and/or mailing labels for partisan political purposes, and contend that they cannot, and do not attempt, to control the use of such materials once released to school groups. Nevertheless, as noted in Appeal of Lawson, 38 Ed Dept Rep 713, Decision No. 14,124, a school district is accountable for how its resources, such as mailing address labels, are being used, and respondent board should review its policies on elections and the use of district resources to ensure that adequate safeguards are in place to protect against the improper use of district generated mailing labels and other district resources to advocate partisan political positions. In any event, regardless of whether district generated mailing labels were used improperly in this instance, petitioner has failed to establish that such use actually affected the outcome of the election.

With respect to petitioner's request that I conduct an investigation of the matters set forth in his petition, it must be noted that an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Van Zile and Crowell, 37 Ed Dept Rep 213, Decision No. 13,846; Appeal of Distefano, 36 id. 216, Decision No. 13,705). Petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Brown, supra; Appeal of Catherine B., 37 Ed Dept Rep 34, Decision No. 13,797). Furthermore, I find no basis in the record before me to warrant an investigation. Accordingly, I decline to undertake an investigation as requested by petitioner.