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Decision No. 14,745

Appeal of PAUL A. D"ORONZIO and SALLY D"AGOSTINO from action of the Board of Education of the City School District of the City of Albany regarding a bond referendum.


Decision No. 14,745

(June 19, 2002)


Girvin & Ferlazzo, P.C., attorneys for respondent, Jeffrey D. Honeywell and Kathy Ann Wolverton, Esqs., of counsel


MILLS, Commissioner.--Petitioners challenge certain actions taken by the Board of Education of the City School District of the City of Albany ("respondent") in advance of a school facilities bond referendum. The appeal must be dismissed.

Following several years of planning, respondent approved a resolution on October 25, 2001 to place before the district"s voters a proposition to construct, renovate and reconstruct virtually every one of respondent"s school buildings, and to finance such construction and reconstruction projects through the issuance of bonds. Included within this comprehensive facilities plan is a proposal to construct a new middle school within the Westland Hills Park in the City of Albany. The referendum on the plan was held on December 11, 2001, and passed by a vote of 5,523 "yes" votes to 2,775 "no" votes. This appeal ensued. Petitioners" request for interim relief was denied on November 30, 2001.

Petitioners allege that respondent, and particularly its superintendent of schools, engaged in illegal campaign activities and willfully misrepresented information in advance of the referendum. Petitioners further allege that "the pattern of deliberate lies and so pervasive that it has destroyed the integrity of the referendum, and that any result would not reflect the informed voice of the electorate."

Respondent contends that petitioners have failed to demonstrate any wrongdoing on its part; that the petition fails to meet the requirements for a class appeal; that petitioners" allegations regarding the distribution of materials by respondent are not ripe for decision; that the Commissioner is not authorized to grant much of the relief requested; that several of the allegations are time barred; and, finally, that the petition fails to name necessary parties.

Petitioners assert in the caption of their petition that they are bringing this appeal "as Friends of Westland Hills Park...." To the extent petitioners seek to bring this petition on behalf of a class, class status must be denied. An appeal may be maintained on behalf of a class "only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class" (8 NYCRR "275.2[a]). Petitioners must set forth the number of individuals they seek to represent and show that all questions of law and fact would be common to all members of that class (Appeal of Phillips, 40 Ed Dept Rep 241, Decision No. 14,471). Here, petitioners have not explained whether Friends of Westland Hills Park is a class and, if so, how many members it has. Accordingly, class status is denied. Furthermore, to the extent that petitioners purport to bring this appeal as an unincorporated association or as individual representatives of an unincorporated association, they lack standing to maintain the appeal under Education Law "310 (Appeal of Fuller, 41 Ed Dept Rep ___, Decision No. 14,623; Application of the Coalition for the Empowerment of People of African Ancestry, 39 id. 161, Decision No. 14,202).

Respondent maintains that petitioners" reply must be rejected in its entirety because it contains inappropriate material. Respondent asserts that petitioners" reply goes beyond responding to the affirmative defenses set forth in respondent"s answer; adds new facts that were known, or could have been known at the time the petition was filed; and raises new allegations. Most importantly, respondent correctly asserts that petitioners" reply seeks additional relief. Specifically, the petition asks, interalia, that I reschedule the December 11, 2001 bond referendum, whereas the reply asks, interalia, that I nullify the results of that referendum.

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR "275.3 and "275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Studentwith a Disability, 41 Ed Dept Rep ____, Decision No. 14,719; Appeal of Huber, et al., 41 id. ___, Decision No. 14,676; Appeal of Karpoff, et al., 40 id. ___, Decision No. 14,527). Therefore, while I have reviewed petitioners" submission, I have not considered those portions of the reply containing new allegations that are not responsive to new materials or affirmative defenses set forth in the answer.

The appeal is, in part, moot. It is well settled that the Commissioner will only decide 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 S.T., 41 Ed Dept Rep ___, Decision No. 14,709; Appeal of a Student with a Disability, 41 id. ___, Decision No. 14,680). This is especially true when petitioners have sought interim relief as to all or most of their claims, and that relief has been denied (Appeal of Hanson, 39 Ed Dept Rep 788, Decision No. 14,381; Appeal of Studley, 38 id. 258, Decision No. 14,028). Although the passage of the referendum on December 11, 2001 has rendered the appeal moot to the extent petitioners request that I stay the special district meeting, reschedule the referendum for a later date and monitor such rescheduled referendum, I do not otherwise find the petition moot (Appeal of Huber, supra). Petitioners contend, among other things, that respondent engaged in a pattern of deliberate lies and deception so pervasive that the integrity of the referendum was destroyed, and that the result does not accurately reflect the voice of the electorate. If I were to find that respondent board engaged in electioneering that affected the outcome of the election, I could invalidate the election results and order respondent board to hold another special district meeting (Appeal of Huber, supra). Because I find that there is meaningful relief available, I decline to dismiss the remainder of petitioners" claims as moot.

However, the appeal must be dismissed on the merits. In an appeal to the Commissioner, petitioner bears the burden of establishing all of the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Boiko, 40 Ed Dept Rep ___, Decision No. 14,513; Appeal of Taylor, 39 id. 368, Decision No. 14,261; Appeal of Trombley, 39 id. 115, Decision No. 14,189) and demonstrating a clear legal right to the relief requested (Appeal of Boiko, supra; Appeal of Taylor, supra; Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120).

To overturn an election, petitioner must prove improper conduct on the part of respondent, such as a violation of the Education Law or the Commissioner's regulations (Appeal of Maliha, 41 Ed Dept Rep ___, Decision No. 14,716). 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 fairness of 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). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Estro, 41 Ed Dept Rep ___, Decision No. 14,698; Appeal of Goldman, 35 id. 126, Decision No. 13,487; Appeal of Roberts, supra).

In the present appeal, petitioners have failed to establish that any irregularities occurred affecting the outcome of the December 11, 2001 vote. Where a vote is on a capital project and the financing thereof, the proof must contain affidavits or statements from individuals who voted in favor of the proposition that their vote would have been otherwise but for the alleged misconduct (Appeal of Huber, supra; Appeal of Krantz, 38 Ed Dept Rep 485, Decision No. 14,077). Petitioners have failed to submit a single affidavit from a district voter stating that respondent"s alleged improprieties affected their vote. Petitioners have also failed to demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law. Accordingly, in order for me to nullify the results of the referendum, I must find that the alleged irregularities were so pervasive that they vitiated the electoral process.

Petitioners allege that respondent"s superintendent willfully presented false and misleading information concerning the proposed referendum to respondent, to the Common Council of the City of Albany and to the public. Specifically, petitioners allege that the superintendent falsely reported to respondent on October 25, 2001, and to the Common Council on October 31, 2001, that the State Environmental Quality Review Act (SEQRA) process had been completed and that the State Education Department (SED) had approved Westland Hills Park for use as the site of the new middle school. Petitioners further assert that respondent falsely and deliberately asserted in a pamphlet distributed at district expense that "the last hurdle to finalizing the project was overcome when the New York State Education Department, the Department of Environmental Conservation and the Albany Health Department signed off on the location of the third middle school."

In his affidavit, the superintendent avers that: "In presenting information to [respondent], the City"s Common Council and the public, I have always explained that the approvals necessary to proceed to a public vote are not the final step in the process. I have made it clear that further studies and mitigation will be necessary and must be completed to SED"s satisfaction...I have consistently stated that, at this stage, SEQRA is simply an important part of an ongoing process."

On October 25, 2001, Carl Thurnau, SED"s Coordinator of Facilities Planning, issued a report titled "Findings Statement Pursuant to the State Environmental Quality Review Act by the State Education Department for the Proposed Construction of a New Middle School for the Albany City School District." Among other things, the report stated: "Upon consideration of the relevant identified environmental impacts, facts and conclusions disclosed in the DEIS and FEIS, and upon weighing and balancing the relevant environmental impacts with the social, economic and other considerations associated with the proposed project, the State Education Department, as lead agency, hereby approves the project." To the extent that the superintendent"s statements and respondent"s mailing purported to indicate that all steps in the environmental review process were complete and that the site had received all necessary approvals, those statements were somewhat misleading. However, to the extent that the superintendent"s statements and respondent"s mailing notified residents that the SEQRA process was complete and that the referendum could therefore proceed with the State Education Department"s approval, the statements were accurate.

Petitioners also contend that respondent asserted in a pamphlet distributed at district expense that a vote in favor of the referendum would bring families back to the city of Albany, and that such a statement is mere conjecture. It is well settled that while a board of education may distribute factual information regarding a vote or an election, the use of district resources to distribute materials designed to solicit favorable votes violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Maurer, 67 NY2d 672 [1986]; Appeal of Huber, supra). Moreover, 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 (Appeal of Dinan, 36 Ed Dept Rep 370, Decision No. 13,752; Appeal of Carroll, 33 id. 219, Decision No. 13,030). Statements that do not specifically urge a "yes" vote may nevertheless violate the holding in Phillips v. Maurer, supra, if such statements otherwise seek to persuade or convey support for a particular position (Appeal of Hubbard, 39 Ed Dept Rep 363, Decision No. 14,259; Appeal of Miller, 39 id. 348, Decision No. 14,256; Appeal of Meyer, et al., 38 id. 285, Decision No. 14,034).

The statement in respondent"s pamphlet linking a return of families back to the city of Albany to the strength of the school system presents a close question. However, on balance, I find that the statement is intended to persuade the public by promoting the positive consequences of a "yes" vote. It does not set forth objective facts designed to educate or inform the public. Thus, this statement constitutes improper advocacy (Appeal of Karpoff, supra; Appeal of Eckert, 40 Ed Dept Rep _ , Decision No. 14,520). I therefore strongly caution respondent to refrain from speculating about the effect future proposals might have on bringing families back to the city in an attempt to persuade the public to take a particular position on such propositions (Appeal of Karpoff, supra).

Petitioners also allege that respondent"s materials misstated that there is a current shortage of space in one of its middle schools. Petitioners offer absolutely no evidence in support of their assertion that respondent has misstated this fact. Furthermore, in his affidavit, respondent"s superintendent attests to the fact that "both middle schools are overcrowded."

Petitioners also assert that during a district-sponsored tour of the proposed site of the school to be constructed, one of respondent"s employees posed as a concerned citizen and advocated strongly for the proposal. While unclear from the petition, I assume petitioners are asserting that this alleged use of a district employee to advocate in favor of the proposed referendum is illegal. In his affidavit, however, respondent"s superintendent attests to the fact that "no school district administrator or board member directed or required [the school district employee] attend or the tour of the Westland Hills site, which occurred on a non-work day."

Petitioners further allege that "district literature, the superintendent and [respondent] continuously and willfully obfuscate the true cost of the bond at $175 million, and ignore interest costs...." On October 25, 2001 respondent adopted a resolution approving the various construction and renovation projects "at a maximum aggregate cost of $176,470,000." All of the district-sponsored literature submitted with the petition indicate a project cost of "$174.6 million." To the extent that respondent adopted a resolution approving an aggregate cost of $176.47 million, as opposed to the $174.6 million which appears on the literature, the mistake appears to be typographical and is deminimis. Furthermore, respondent approved a proposal costing approximately $175 million, and the literature accurately reflects that amount. Finally, at least one piece of district-sponsored literature clearly specified that the loan period for the bonds would be 20 years for renovations and 30 years for new construction, at an estimated interest rate of six percent. Accordingly, I reject petitioners" contention that respondent has willfully obfuscated the true costs of the project by failing to include interest costs.

Petitioners also assert that district-sponsored literature attempts to minimize the extent of the contamination present at the proposed site of the school to be constructed. One piece of literature noted that "[t]hrough the environmental review process, [respondent] found that the soil contains lead from construction debris illegally dumped on the parkland. This soil will be removed prior to construction." In addition, respondent provided a more thorough report on its web site, noting that "there is an area...with elevated levels of hazardous materials...there is evidence of asbestos and other debris on the ground surface" and that "the New York State Department of Environmental Conservation and the Albany County Health Department reviewed the sampling analysis and have agreed that a detailed subsurface investigation is required and that any contaminated soil must be removed as part of the construction process. Hazardous surface materials would also have to be removed." Accordingly, it is inaccurate to say that respondent willfully minimized the extent of the contamination problem at the site.


Finally, petitioners allege that school district staff and their consultants acted with outside groups, "providing them with mailing lists, canned presentations, press packets and video" and that respondent "offered services to these groups at reduced prices." In support of this allegation, petitioners submit a copy of an e-mail communication, dated August 9, 2001 purporting to memorialize the proceedings of a July 30, 2001 meeting with district employees. The e-mail alleges that "the district will develop a press packet, video and canned presentation which [outside groups] may use in meeting with various groups to get the word out and gain support." Other than this e-mail communication, petitioners present absolutely no evidence to substantiate their claim that respondent improperly provided support to outside organizations. Accordingly, I must reject this claim.

While the record indicates that respondent could have been more vigilant in presenting information and materials to district residents that were strictly factual with regard to the upcoming referendum, its lapses were not so pervasive that they vitiated the fundamental fairness of the electoral process.

In light of this disposition, I need not address the parties remaining contentions.