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Decision No. 14,384

Appeal of ERNEST TANZER from action of the Board of Education and the Superintendent of the West Irondequoit Central School District regarding a bond proposition vote.

Decision No. 14,384

(June 12, 2000)

Harris, Beach & Wilcox, LLP, attorneys for respondents, Alfred Streppa, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the outcome of a capital project and bond proposition election conducted by the Board of Education of the West Irondequoit Central School District ("respondent board") and its superintendent, Dr. Glenn Wachter ("respondent superintendent"), on December 7, 1999. The appeal must be dismissed.

In December 1999, respondent board held an election to permit district voters to consider a capital project and bond proposition that included the construction of new buildings and reconstruction of existing structures. Prior to the election, respondents mailed information to district voters indicating that the anticipated annual tax increase resulting from the project for an average taxpayer would be about $79 per year. Petitioner disputes the accuracy of this figure. On or about October 18, 1999, petitioner gave respondent superintendent an analysis that he had prepared, indicating that the actual annual tax increase for the average taxpayer would be about $156 per year. Petitioner and respondent superintendent exchanged several letters regarding the anticipated tax consequences of the proposed project. Petitioner also submitted a request pursuant to the Freedom of Information Law ("FOIL") to obtain records of any calculations used by respondents to arrive at the $79 figure. Respondent superintendent answered that the figure was derived from a report prepared by the district's financial consultant, and provided petitioner with a copy of the report. Petitioner's request for detailed calculations, however, was denied on the ground that those records were not maintained by the school district and were in the sole possession of its financial consultant.

On December 7, 1999, district voters approved the bond proposal, and this appeal ensued. Petitioner asserts that the $79 figure was inaccurate and influenced voters to approve the project based upon this misleading information about the anticipated tax impact. Petitioner further contends that respondents used public funds to carry out a campaign to exhort a positive vote on the bond proposal. Petitioner requests that I nullify the December 7, 1999 vote, and direct respondents to cease such partisan activity in the future.

Respondents deny these claims, and assert that the tax consequence figure is accurate based upon the analysis performed by the district’s financial consultant. Respondents further contend that petitioner otherwise fails to state a claim for improperly influencing the vote by failing to specify even one particular action or document which was allegedly improper other than the purportedly incorrect tax effect figure; that certain unsworn attachments to the petition should be disregarded; that the Commissioner lacks jurisdiction over FOIL issues; and that petitioner presents no evidence that the outcome of the election would have been different but for the information published by respondents. Respondents also object in part to the reply submitted by petitioner, contending that the reply includes new matter that is inappropriate pursuant to "275.14 of the Commissioner's Regulations. I will first address respondents' procedural objections.

I decline respondents' request to reject the unsworn attachments to the petition. The petition specifically refers to and incorporates by reference the various attachments and exhibits, and includes generally the arguments presented in more detail in four of the attached documents. A fifth document consists of an outline of petitioner's educational background. The petition itself is properly verified as required by "275.5 of the Commissioner's Regulations, and I find that the petition and its attachments are properly before me in this appeal. Furthermore, I note that petitioner is proceeding prose. Where, as here, petitioner is not represented by counsel, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to respondent (Appeal of Phillips, 37 Ed Dept Rep 204, Decision No. 13,843; Appeal of Loughlin, 35 id. 432, Decision No. 13,591; Appeal of Roxbury Taxpayers Alliance, 34 id. 576, Decision No. 13,414).

As to the reply, the purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or belatedly to add assertions that should have been included in the petition (Appeal of Adriatico, 39 Ed Dept Rep 248, Decision No. 14,228; Appeal of Breud, et al., 38 id. 748, Decision No. 14,133). The challenged paragraphs merely contain argument in response to assertions made in respondents' answer, and do not raise new arguments or facts which should have been in the petition. I therefore deny respondents' request to reject the reply in part.

I dismiss the appeal insofar as petitioner challenges the denial of his FOIL appeal. Alleged violations of the Freedom of Information Law must be pursued in a judicial proceeding in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules (Public Officers Law "89; Appeal of Goldin, 38 Ed Dept Rep 322, Decision No. 14,044; Appeal of Lilker, 37 id. 529, Decision No. 13,919; Appeal of Hendrick, 37 id. 188, Decision No. 13,838). Therefore, I am without jurisdiction to decide this claim.

I also agree that petitioner has failed to state a claim that respondents engaged in improper activity to advocate a favorable vote or to influence voters, other than publishing an allegedly incorrect tax impact figure. In an appeal to the Commissioner pursuant to Education Law "310, it is petitioner’s burden to demonstrate a clear legal right to the relief requested (8 NYCRR "275.10) and to establish the facts upon which he seeks such relief (Appeal of Mayer, 39 Ed Dept Rep 195, Decision No. 14,212; Appeal of Ogbunugafor, 38 id. 105, Decision No. 13,994; Appeal of Oyibo, 37 id. 356, Decision No. 13,878). Other than the allegedly incorrect tax impact calculation, petitioner does not identify any specific publication or statement or action by respondents that petitioner contends is an improper attempt to influence the voters at the election. Failure to establish the facts supporting his claim requires dismissal of the contention that respondents attempted to influence the voters in any respect other than by providing allegedly incorrect tax impact information.

From the record before me, I am unable to determine whether the anticipated tax impact figure calculated by respondents or petitioner is the correct figure. Respondents do not provide the methodology used by the district or its consultant to calculate the anticipated tax consequences of the proposed project, only the final results of the calculation as provided by their financial consultant, although respondents contend that there were differences between the method of analysis used by petitioner vis-"-vis respondents' consultant. In any event, it is immaterial which number is in fact correct because the appeal must be dismissed for failure to establish that the anticipated tax impact figure in the information disseminated by respondents had any effect on voters and the outcome of the election.

To overturn an election, petitioner must prove improper conduct on the part of respondents such as a violation of the Education Law or Commissioner’s Regulations (Appeal of Collins, 39 Ed Dept Rep 226, Decision No. 14,223; Appeal of DeBerardinis, 39 id. 145, Decision No. 14,196; Appeal of Ponella, 38 id. 610, Decision No. 14,103). Petitioner must also establish that the alleged irregularities actually affected the outcome of the election (Crawmer v. Mills, 239 AD2d 844, 845 [3d Dept], leave to appeal denied, 91 NY2d 804 [1997]; Davis v. Commissioner of Education, 189 AD2d 1046 [3d Dept 1993]; Appeal of Collins, supra; Appeal of DeBerardinis, supra), were so pervasive that they vitiated the electoral process (Appeal of Brown, 38 Ed Dept Rep 816, Decision No. 14,151; Appeal of Roberts, 33 id. 601, Decision No. 13,162), 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, Decision No. 11,356, aff’d sub nom, Capobianco v. Ambach, 112 AD2d 640 [3d Dept 1985]). 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 Ponella, supra; Appeal of Roberts, supra). Petitioner has the burden of establishing all the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Adams, supra; Appeal of Neufang, 38 Ed Dept Rep 567, Decision No. 14,095).

Petitioner presents no evidence that respondents’ publication of allegedly incorrect information on the anticipated tax consequences of the proposed project had any effect whatsoever on the outcome of the election (Crawmer v. Mills, supra; Davis v. Commissioner of Education, supra). Petitioner also fails to establish that this information was so central to the voters' determination that its dissemination and receipt effectively undermined the entire electoral process. There is also no evidence that respondents acted improperly by relying upon the calculations produced by their financial consultant. In view of the foregoing, petitioner has failed to meet his burden in this matter and the appeal must, therefore, be dismissed.