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Decision No. 14,514

Appeal of PHILIP B. CHRISTE from action of the Board of Education of the Bedford Central School District, Dr. Bruce L. Dennis, Superintendent, Richard Kraemer, Principal, Fox Lane High School, Bedford Teachers Association, Kenneth Kurzweil, President, regarding a budget vote.

Decision No. 14,514

(December 21, 2000)

Ingerman Smith, LLP, attorneys for respondents Board of Education, Dennis and Kraemer, Neil M. Block, Esq., of counsel

James R. Sander, Esq., attorney for respondent Teachers Association, Paul H. Janis, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges certain actions taken by the Board of Education of the Bedford Central School District, Dr. Bruce L. Dennis, the district’s superintendent, Richard Kraemer, the principal of Fox Lane High School, and Kenneth Kurzweil, the president of the Bedford Teachers Association ("respondents") in advance of a vote on a revised school budget. The appeal must be dismissed.

On May 16, 2000, district voters defeated a proposed budget for the 2000-2001 school year. On May 19, 2000, respondent Dennis sent a letter, on district letterhead, to the parents of students attending Bedford public schools. The letter announced the dates of several upcoming meetings at which alternatives for a revised budget would be discussed. In the letter, Dennis outlined the areas where he intended to recommend further budget cuts and provided a brief summary of the statutory spending limits imposed on districts operating under contingency budgets. On the same day, Dennis disseminated an identical letter, addressed to residents of the district, in local public libraries and in the form of letters to the editor in local newspapers.

Petitioner contends that respondents illegally exhorted the district’s voters to support the revised budget by disseminating a false and misleading letter on May 19. Petitioner also contends that respondents improperly targeted certain district residents by sending the May 19 letter to the parents of students attending district schools. Further, petitioner alleges that respondent Kraemer permitted a student to use school resources to create a false and misleading flyer and to distribute it to other students at Fox Lane High School during the school day. Finally, petitioner alleges that respondent Teachers Association’s Code of Ethics was violated when a district teacher "verbally intimidated" students in an attempt to induce those students to urge their parents to vote for the budget and when another teacher commented to his students that a budget defeat would adversely affect local businesses. Petitioner requests that I order respondents to cease exhorting the electorate to vote in favor of the budget; that respondent superintendent be ordered to personally reimburse the district for the cost of producing and disseminating the May 19 letter and the student-produced flyer and to pay for public retractions of such documents; and that respondent board monitor future budget-related communications to ensure compliance with the law in the event of future budget votes. Petitioner’s request for interim relief was denied on June 12, 2000.

By letters dated June 2 and June 23, 2000, petitioner seeks to amend his petition and asks me to consider additional exhibits. These amendments and exhibits purport to show that respondents’ alleged improper and illegal electioneering continued from the time the original petition was filed until the date of the vote on the revised budget, on June 20, 2000. In his amended petition of June 23, petitioner requests that I set aside the results of the June 20 vote, at which the revised budget was approved.

Respondents contend that the petition and amended petitions were not verified, and must therefore be dismissed. Respondents also assert that the May 19 letter included only factual information, in full compliance with the law. They further assert that they could not have been exhorting a "yes" vote on the revised budget, as there was no proposed budget in place at the time the letter was disseminated and because no date had yet been set for a vote on such a budget. Respondents also contend that because the May 19 letter was disseminated to public libraries and to local newspapers it was not targeted to the parents of district students. Respondents further contend that the student-generated flyer was produced and distributed solely by the student, without the knowledge or consent of the student’s teacher or respondent principal; that the flyer did not advocate a partisan position with regard to the budget vote; and that when he learned of the flyer, the principal admonished the student to refrain from using school resources to generate or distribute flyers regarding the budget in the future. Respondents assert that petitioner’s allegations regarding violations of respondent Teachers Association’s Code of Ethics are wholly unsubstantiated. Finally, with regard to the charges of ongoing improper electioneering alleged in petitioner’s amendments, respondents contend that those allegations are wholly unsupported by the facts or the law.

As a preliminary matter, this appeal must be dismissed in its entirety against respondent Bedford Teachers Association and its president, Kenneth Kurzweil. It is well settled that union organizations are not subject to the jurisdiction of the Commissioner of Education under Education Law "310 (Appeal of Goldin, 38 Ed Dept Rep 317, Decision No. 14,043; Appeal of Kane, 31 id. 322, Decision No. 12,653).

Respondents assert that the petition and the subsequently proffered amendments should be dismissed, since they were not verified by petitioner as initially submitted. It was not until respondents raised the issue of verification in their joint answer that petitioner belatedly submitted verifications of his petition and amendments. Section 275.5 of the Regulations of the Commissioner unambiguously requires all pleadings to be verified. However, I have consistently held that where, as here, a petitioner is proceeding without representation by counsel, a liberal interpretation of the rules is appropriate, particularly when there is no evidence of prejudice to the opposing party (Appeal of Cieslik, 40 Ed Dept Rep ___, Decision No. 14,478; Appeal of Smith, 40 id. ___, Decision No. 14,452). Respondents do not plead any prejudice resulting from petitioner’s late submission of verifications, nor do I find any such prejudice. Accordingly, I decline to dismiss the petition on this basis.

The appeal must, however, be dismissed on the merits. To overturn an election, petitioner must prove improper conduct on the part of respondents, such as a violation of the Education Law or the Commissioner's regulations. Petitioner must also establish 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 Brown, 38 Ed Dept Rep 816, Decision No. 14,151; Appeal of Roberts, 33 id. 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 demonstrated 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 nomCapobianco v. Ambach, 112 AD2d 640).

In an appeal before the Commissioner, petitioner bears the burden of establishing the facts upon which relief is sought (8 NYCRR "275.10; Appeal of Boni, 40 Ed Dept Rep ___, Decision No. 14,483). Here, petitioner presents no evidence that any actions by respondents actually affected the outcome of the vote on the revised budget, which was approved by a margin of 649 votes. Petitioner provides no affidavits that anyone who voted for the budget would have voted differently but for any alleged irregularity by respondents (Appeal of Boni, supra; Appeal of Krantz, 38 Ed Dept Rep 485, Decision No. 14,077). Mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Boni, supra; Appeal of McBride, 39 Ed Dept Rep ___, Decision No. 14,354).

Petitioner has also failed to demonstrate that respondents’ alleged irregularities were so pervasive that they vitiated the electoral process; nor has he demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law. Petitioner provides no evidence that any partisan materials were produced or sanctioned by respondents. With regard to the flyer disseminated by a student at Fox Lane High

School, respond Kraemer indicates in his affidavit that the flyer was developed and distributed solely by that student, acting without the knowledge or consent of the school’s faculty or administration, and that he admonished the student not to produce such materials with school resources in the future.

While a board of education may provide informational material to the voters concerning a proposed budget or proposition (Education Law "1716), school district funds may not be used to exhort the electorate to support a particular position (Phillips v. Maurer, 67 NY2d 672). Statements that do not specifically urge a "yes" vote may nevertheless violate the holding in Phillips v. Maurer if such statements otherwise seek to persuade or convey support for a particular position (Appeal of Gravink, 37 Ed Dept Rep 393, Decision No. 13,888; Appeal of Rampello, 37 id. 153, Decision No. 13,830). In this case, though, the contents of the May 19 letter are factual and informational, and it cannot be reasonably construed as advocating a "yes" vote.

Finally, petitioner argues that respondents’ letter of May 19 was impermissibly targeted to the parents of students attending district schools, in an attempt to ensure that those who were most sympathetic to approving the budget would turn out to vote. The use of specialized mailings or distributions to parents of students or other selected groups may in some instances suggest the appearance of partisan activity (Appeal of Schadtle, 38 Ed Dept Rep 599, Decision No. 14,102). In this case, however, respondent Dennis indicates in his affidavit that the same letter that was sent to the parents of district students "was disseminated to residents in local public libraries and the local newspapers in the form of letters to the editor." Accordingly, I do not find that respondents engaged in impermissible targeting.

I have considered petitioner's remaining contentions and find them without merit.