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Decision No. 14,413

Appeal of PETER MEYER and ARTHUR H. MITTELSTAEDT, Jr., from action of the Board of Education of the Port Washington Union Free School District regarding a bond referendum.

Decision No. 14,413

(July 31, 2000)

Ehrlich, Frazer & Feldman, Esq., attorneys for respondent, James H. Pyun, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge certain actions of the Board of Education of the Port Washington Union Free School District ("respondent") relating to a bond vote held on May 16, 2000. The appeal must be dismissed.

On February 4, 2000, respondent issued a publication entitled the "Port Report" which described a long-term facilities plan for the district. On March 28, 2000, respondent determined to place an $86.7 million dollar bond proposition for capital improvements before district voters at the upcoming annual meeting on May 16, 2000. On May 16, 2000 the voters defeated the bond proposition. Respondent has subsequently indicated that it does not plan to resubmit this proposition to district voters.

Petitioners assert that the "Port Report" contained language that improperly exhorted the voters to approve the bond proposition. They further contend that respondent's superintendent made improper presentations regarding the proposition during February, March and April 2000.

Petitioners also assert that respondent intentionally delayed placing the proposition on the ballot until late in the school year to facilitate approval of the proposition. Petitioners, therefore, seek a temporary waiver of what they characterize as "the 45 day period between a defeated Bond Referendum and a New Bond Referendum" for the apparent purpose of facilitating their ability to formulate and submit an alternative facilities proposal in connection with the referendum on the bond proposition.

Respondent contends that this appeal must be dismissed as moot since the voters defeated the proposition. Moreover, respondent asserts that it has no plans to resubmit the proposition to district voters. Respondent additionally asserts that even if district officials acted improperly, there is no evidence that such actions affected the outcome of the vote, since the proposition was in fact defeated. Finally, respondent asserts that all of its actions were proper.

As a threshold matter, I must address several procedural issues. Petitioners seek to challenge respondent’s actions both as residents of respondent’s district and on behalf of all district residents. While petitioners have standing to bring this appeal on behalf of themselves as residents and taxpayers of the district, they lack standing to assert the rights of others (Appeal of Schuler, 37 Ed Dept Rep 512 (Decision No. 13,915); Appeals of Cappa, 36 Ed Dept Rep 278 (Decision No. 13,724). Therefore, to the extent that petitioners appeal on behalf of other district residents, those claims are dismissed.

The appeal must also be dismissed as moot. It is well settled that the Commissioner will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Schuler, supra). The proposition complained of was defeated by district voters on May 16, 2000. Accordingly, to the extent that petitioners challenge that vote, the appeal must be dismissed as moot.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Analysis of alleged election irregularities requires a two-part inquiry. Both prongs of this analysis must be satisfied for the Commissioner to disturb the outcome of an election (Appeal of Santicola, 36 Ed Dept Rep 416 (Decision No. 13,765); Appeal of Goldman, 35 Ed Dept Rep 126 (Decision No. 13,487). First, petitioner must prove improper conduct on the part of the respondent, such as a violation of Education Law or Commissioner's regulations (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). Second, petitioner must establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, 301 NYS2d 664, aff'd 26 NY2d 709, 308 NYS2d 873; Appeal of Roberts, 33 Ed Dept Rep 601 (Decision No. 13,162), were so pervasive that they vitiated the electoral process (Appeal of Roberts, supra; Matter of Gilbert, 20 Ed Dept Rep 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 Ed Dept Rep 172, Decision No. 11,356, aff'd sub nom Capobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 112 AD2d 640, 492 NYS2d 157). 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, Decision No. 12,177). Petitioner has the burden of establishing all the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Pickreign, 28 Ed Dept Rep 163, Decision No. 12,067).

Petitioners allege that there was improper language in a "Port Report" which they seem to contend was intended to persuade the electorate. However, my review of the language contained in the report indicates that the report is essentially factual in nature. It explains the need for construction -- "...we educate children in hallways and converted closets. The overburdened cafeterias force them to have lunch at 10:40 in the morning or, at the high school, to go off campus to eat. There is not enough gym space..." such information is just that, and does not improperly exhort the electorate to "vote yes". Petitioners have failed to meet their burden of proof.

Moreover, petitioners must also demonstrate that if the irregularities occurred, that they affected the outcome of the election. In view of the fact that the proposition which petitioners contest was defeated, the alleged irregularities obviously failed to improperly influence district voters to support an affirmative outcome.

I have considered petitioners' other claims and find them without merit. Accordingly, petitioners have failed to meet their burden of proof that the irregularities occurred, or, if they occurred, that they affected the outcome of the election.

In light of my determination, there is no need to address the parties’ remaining contentions.