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Decision No. 14,664

Appeal of FRANCIS E. HOEFER from action of the Board of Education of the City School District of the City of Oswego, the New York State United Teachers, the Oswego Classroom Teachers Association, Suzanne Basualdo, Frederick Smith, Veronica Baker, Maryanne Schultz, David White, Penny Schrader, and Debi Geroux regarding the conduct of an election.

Decision No. 14,664

(December 12, 2001)

Michael J. Stanley Law Office, attorney for respondent Board of Education of the City School District of the City of Oswego, Michael J. Stanley, Esq., of counsel

James R. Sandner, Esq., attorney for respondents New York State United Teachers, Oswego Classroom Teachers Association and Suzanne Basualdo, Kevin H. Harren, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the City School District of the City of Oswego ("board"), the Oswego Classroom Teachers Association ("OCTA"), OCTA representative Suzanne Basualdo, and the New York State United Teachers ("NYSUT") concerning the district"s May 15, 2001 school board election. Petitioner also names the five school board candidates as respondents. The appeal must be dismissed.

On May 15, 2001, respondents Frederick Smith and Veronica Baker were elected to respondent board. The third place candidate lost by 94 votes. Both of the winning candidates were endorsed by OCTA.

Petitioner contends that respondent board failed to prevent the use of school district facilities to influence the outcome of the election. Specifically, she alleges that respondent Basualdo, an OCTA official, used school district computers to send an e-mail message to OCTA members encouraging them to vote for Smith and Baker. He also claims respondent Basualdo e-mailed United University Professions SUNY Oswego Chapter President, Greg Auleta, seeking his help in supporting Smith and Baker.

Petitioner further alleges that prior to the May 15 election, OCTA officials used school district mailboxes to distribute a large number of flyers endorsing Smith and Baker. Petitioner contends that a number of these flyers were distributed to school children by their teachers. She also alleges that one teacher participated in the voter registration of high school seniors. Petitioner requests that I set aside the results of the school board election.

Respondent board contends that it had no knowledge of the e-mails sent by respondent Basualdo. It maintains there is no evidence that the alleged improprieties affected the outcome of the election.

Respondent NYSUT claims that it has no authority to dictate the activities of its member local organizations such as OCTA. It alleges that it was unaware of the activities complained of in the petition. It also contends that service on it was defective in that the petition was simply mailed to a former address of a NYSUT regional office. Additionally, NYSUT maintains that the Commissioner has no jurisdiction over it in a "310 appeal.

Respondents OCTA and Basualdo claim that OCTA has a collective bargaining agreement with the district which provides that, "OCTA may distribute materials dealing with the business of the OCTA through teachers" mail boxes with the approval of the principal which shall not be unreasonably withheld." OCTA alleges that pursuant to this contract provision, and past practice, it has been allowed to use both the district"s mailboxes and its e-mail system to communicate with its members.

OCTA also contends that the flyers endorsing Smith and Baker were distributed with instructions to teachers to disseminate them to friends and neighbors, not to students. However, a substitute teacher did distribute the 10 flyers sent to her to students in her class. OCTA maintains that respondent board had no involvement in the formulation or dissemination of any of the materials. Finally, OCTA claims that the Commissioner does not have jurisdiction over teacher organizations or their representatives under "310.

As a preliminary matter, this appeal must be dismissed in its entirety against respondents NYSUT, OCTA, and Suzanne Basualdo as a representative of OCTA. It is well settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education under Education Law "310 (Appeal of Christe, 40 Ed Dept Rep ___, Decision No. 14,514; Appeal of Goldin, 38 id. 317, Decision No. 14,043; Appeal of Kane, 31 id. 322, Decision No. 12,653).

This appeal must also 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. Petitioner provides no affidavits that anyone who voted for the winning candidates 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, et al., 39 Ed Dept Rep 702, 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 respondent board. With regard to the flyers disseminated to teachers by OCTA, it appears from the record that the flyers were produced and paid for exclusively by OCTA and were accidentally distributed to 10 students by a substitute teacher. I note, however, that the flyers were clearly partisan in nature and were placed in teachers mailboxes with instructions to distribute 10 copies to neighborhood voters. 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). Even indirect support, such as a school board giving a PTA access to its established channels of communication to parents to espouse a partisan position has been deemed improper (Stern v. Kramarsky, 84 Misc.2d 447; Appeal of Doro, 40 Ed Dept Rep ___, Decision No. 14,480; Appeal of McBride, et al., supra). Permitting teachers to use school facilities to undertake private activities to advocate a particular position on a school board election is similarly improper. In addition to lending indirect support to the private organization"s efforts to influence the vote, permitting such use of school facilities by school staff also lends an appearance of prohibited partisan activity by the school district, which should be avoided (Appeal of Doro, supra; Appeal of McBride, et al., supra).

Respondent board had a collective bargaining agreement which gave the principal of the school the right to approve OCTA mailings to be placed into teachers" mailboxes. There is nothing in the record to indicate that the principal exercised this right of approval in this case. I remind respondent board that it is accountable for how district facilities and resources are used (Appeal of Miller, 39 Ed Dept Rep 348, Decision No. 14,256; Appeal of Lawson, 38 id. 713, Decision No. 14,124) and that it should take such measures as are necessary to prevent the unauthorized distribution of partisan election materials in the schools. It is noteworthy that the flyer in question was not addressed to OCTA members exclusively. Rather, according to instructions distributed therewith, it was intended for distribution in the community. In view of the totality of the circumstances revealed by this record, distribution of this overtly partisan flyer by means of school facilities should have been avoided.

There is no evidence in the record to indicate whether or not the school district had a policy in place concerning the use of e-mail on school district computers by OCTA members. It appears that a policy governing the use of e-mail is appropriate, and should be developed by the district, if it has not already done so. However, the record is also devoid of evidence that the e-mails sent to members of OCTA and the president of the local university professor"s union affected the outcome of the election.

Finally, petitioner claims that some high school students were registered to vote by a teacher. There is nothing inherently wrong with registering a student to vote provided the student is not directed to vote a certain way (see Appeal of Diamond, 39 Ed Dept Rep 541, Decision No. 14,304; Appeal of Greening, 35 id. 267, Decision No. 13,537). The record is devoid of any facts concerning the circumstances surrounding the registration. Therefore, I have no basis to conclude that the voter registration was improper.

In view of the foregoing, petitioner has failed to meet his burden in this matter, and the appeal must be dismissed.