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Decision No. 14,876

Appeal of GILDA TESSER from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding the conduct of an annual district meeting. 

Appeal of BRUCE KAVITSKY from action of the Board of Education of the Hewlett-Woodmere Union Free School District and Dr. Charles Fowler, Superintendent, regarding the conduct of a bond referendum. 

Decision No. 14,876 

(May 30, 2003)


Ehrlich, Frazer & Feldman, attorneys for respondents, Jerome H. Ehrlich, Esq., of counsel 

MILLS, Commissioner.--Petitioner Tesser appeals the actions of the Board of Education of the Hewlett-Woodmere Union Free School District ("the board") and Dr. Charles Fowler ("the superintendent"), (collectively referred to as "respondents"), with respect to the annual budget vote and election of board members held on May 21, 2002.  Petitioner Kavitsky appeals the actions of respondents with respect to a bond referendum held on June 18, 2002.  Because the appeals raise similar claims, they are consolidated for decision.  The appeals must be dismissed.

On May 18, 2002, the board conducted its annual district meeting to vote on the district"s annual budget and elect candidates to the board of education.  At that meeting, the budget was approved.  Thereafter, on June 18, 2002, the board conducted a bond referendum for the construction of a new middle school.  District voters had previously defeated a similar proposition in March 2000 and February 2002.  At the June 18, 2002 referendum, voters again defeated the bond proposition.

Petitioners do not seek to overturn the election results.  Instead, they challenge, as impermissible electioneering, certain actions taken by respondents and by the school district"s parent-teacher association ("PTA") in connection with each of the votes.

Specifically, both petitioners claim that respondents improperly permitted the PTA to use lists of names, addresses and telephone numbers of district students, obtained through district channels, to contact parents and advocate for approval of the budget and bond referendum, as well as to campaign for particular board candidates.  With respect to the June 18 bond referendum, petitioner Kavitsky also contends that the PTA violated its tax-exempt status by printing and distributing a flyer advocating in favor of the bond proposition.  He further claims that the PTA violated New York State telemarketing laws.  Petitioner Kavitsky also claims that the board failed to properly "distance itself" from signs placed throughout the district supporting the bond proposition by failing to require those responsible for the signs to include sponsorship information.

Finally, petitioner Kavitsky challenges the propriety of the June 18, 2002 referendum after a similar proposition had been defeated twice before.  As part of his appeal, petitioner Kavitsky sought to stay "all discussion, plans and/or attempts by the board of education to again bring a new middle school bond referendum to the public, pending final determination of this appeal."  Petitioner Kavitsky"s stay request was denied on August 5, 2002.

At the outset, I note that the replies submitted by petitioners contain new allegations not set forth in the petitions.  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 Crosier, 42 Ed Dept Rep ___, Decision No. 14,835; Appeal of a Student with a Disability and his Sister, 42 id. ___, Decision No. 14,821; Appeal of Huber, et al., 41 id. ___, Decision No. 14,676).  Therefore, while I have reviewed petitioners" replies, I have not considered those portions containing new allegations or exhibits that are not responsive to new  material or affirmative defenses set forth in the answers.

Respondents also raise several procedural defenses.  First, respondents assert that, because petitioners challenge actions taken in relation to the May 21 and June 18, 2002 votes, yet do not seek to overturn the results of either vote, the appeals are academic.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in appeals brought pursuant to Education Law "310 (Appeal of a Student with a Disability, 42 Ed Dept Rep ___, Decision No. 14,791; Appeal of Huber, supra).  However, petitioners allege that respondents have engaged in improper electioneering in the conduct of elections.  If I were to find petitioners" claims meritorious, I could instruct respondents to cease such activity at all future district budget and proposition votes and board member elections.  Accordingly, whether respondents engaged in the conduct alleged is a justiciable issue, and I decline to dismiss the appeals as academic (see, Appeal of Huber, supra).

In the Kavitsky appeal, respondents contend that the petition, served on July 18, 2002, is untimely because petitioner"s allegations of electioneering involve actions that took place prior to the June 18, 2002 bond referendum.  Section 275.16 of the Commissioner"s regulations requires that an appeal be instituted within 30 days from the making of the decision or the performance of the act complained of.  Petitioner Kavitsky commenced this appeal on July 18, 2002.  With the exception of petitioner"s receipt of one flyer on June 18, 2002, all of the acts complained of occurred more than 30 days prior to the commencement of his appeal.  Petitioner does not request that I annul the June 18 bond referendum or order a new vote.  Because the vote itself is not at issue, petitioner Kavitsky"s claims regarding those acts that occurred more than 30 days before his appeal was commenced are untimely and the appeal is dismissed as to those claims (Appeal of Carroll, et al., 42 Ed Dept Rep. ___, Decision No. 14,871; Appeal of Lambert, 37 Ed Dept Rep 599, Decision No. 13,937; Appeal of Pucci, 31 id. 3, Decision No. 12,546; Appeal of Scanio, 22 id. 315, Decision No. 10,974).

Petitioners" claims and requests for relief as against the superintendent must be dismissed for failure to join him as a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Monahan, 42 Ed Dept Rep ___, Decision No. 14,824; Appeal of Maliha, supra).  Section 275.8 of the Commissioner's regulations requires that a copy of the petition be personally served upon each named respondent.  An individual must also be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Maliha, supra).  It is the notice of petition which alerts a party to the fact that he or she is required to appear in the appeal and to answer the allegations contained in the petition (8 NYCRR ""275.11, 275.13; Appeal of Maliha, supra; Application of the Bd. of Educ. of the Ardsley UFSD, 38 Ed Dept Rep 221, Decision No. 14,019).

Petitioners request that I admonish the superintendent.  Thus, his rights would be affected if I granted this request.  Petitioner Tesser failed to name the superintendent as a respondent in the caption of her petition or in the notice of petition such that he would have been on notice that he was a party to the appeal and required to submit an answer.  Petitioner Tesser also failed to serve a copy of the petition upon him.  Although petitioner Kavitsky named the superintendent as a respondent in the notice and petition, he failed to personally serve the superintendent.  Thus, I must dismiss those portions of the appeals seeking relief against the superintendent.

The petitions must also be dismissed on the merits. In both appeals, petitioners allege that the board improperly permitted the PTA to use lists of the names, addresses and telephone numbers of students attending the district " provided to the PTA only for emergency notification and school-related purposes " to contact voters to campaign for the budget, candidates for election to the board of education and the bond proposition.  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; Appeal of Huber, supra; Appeal of Saba, 36 id. 233, Decision No. 13,710).  Even indirect support, such as a school board affording a PTA access to its established channel of communication to parents to espouse a partisan position that the board itself was prohibited from doing directly, has been deemed improper (Stern v. Kramarsky, 84 Misc. 2d 447; Appeal of Huber, supra).

In an appeal to the Commissioner, petitioner has the burden to establish a clear right to the relief requested and to establish the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Crosier, supra; Appeal of Maliha, supra; Appeal of Boni, 40 id. 292, Decision No. 14,483).  The board submits the affidavit of Jill Stern, co-president of the Central Council PTA of respondent"s district during the relevant time period.  In her affidavit, Ms. Stern acknowledged that the PTA was provided the student information for emergency notification and school-related purposes.  Ms. Stern maintains that the student information is not used by the PTA to contact parents in relation to district elections or other votes.  Instead, Ms. Stern states that the PTA uses its own paid membership lists for that purpose.  Other than the conclusory allegations set forth in their pleadings, petitioners offer no evidence to refute Ms. Stern"s sworn affidavit.  Petitioners, thus, fail to establish that the board permitted the use of district resources or established channels of communication for an improper purpose.

Petitioners also claim that the PTA"s campaigning in support of the proposed budget, board candidates, and the bond proposition violated State and federal laws governing the PTA"s tax-exempt status, as well as New York State telemarketing laws (See, N.Y. General Business Law, "399-p).  The Commissioner of Education"s jurisdiction in an appeal brought pursuant to Education Law "310 does not extend to enforcement of the tax and telemarketing laws cited by petitioner (Education Law "310; See, Appeal of N.S., 42 Ed Dept Rep ___, Decision No. 14,817).  Moreover, such allegations challenge actions by the PTA, which is not a party to either of the appeals.

Petitioner Kavitsky additionally claims that the board failed to properly "distance" itself from certain signs posted throughout the school district supporting the bond proposition.  He contends that, because no sponsor was noted on the signs, the board had an affirmative duty to disclaim any authorship or connection with such signs, so as to avoid misinterpretation by the voters.  Petitioner cites no legal authority for his claim, nor does he establish that any of the signs were produced or funded by the board or placed on school property.  Absent any proof that the board acted improperly, petitioner"s claim must be dismissed.

In addition, petitioner Kavitsky asserts that, on June 18, 2002, while dropping his daughter at school, he received "a flyer of unknown sponsorship in support of the middle school proposition" in the driveway of the elementary school.  Respondent denies knowledge of the incident.  Petitioner submits no evidence that the flyer was produced, funded or distributed by the board.  Nor is there anything in the record establishing that the board permitted distribution of such flyers on school property.  Indeed, there is nothing in the record indicating that this was more than an isolated incident of which the board was unaware.

Petitioners submit no evidence that the board engaged in any type of electioneering or improperly permitted district resources to be used by other individuals or organizations for that purpose. I note that in his request for relief petitioner Kavitsky asks that the Commissioner "hire an independent auditor at school district expense to determine if the school district engaged in spending taxpayer money to advertise or promote the bond issue" and "provide petitioner with a corresponding right of inspection of the district"s financial records."  Clearly, the nature of the relief sought by petitioner Kavitsky further demonstrates his failure to meet his burden of proof herein.

Finally, petitioner Kavitsky claims that the board failed to carry out its fiduciary duty by placing the bond proposition before the voters for a third time.  He seeks an order enjoining the board from holding another vote on the same bond proposition.

Education Law "416(6) provides, in pertinent part:

[P]ropositions for the construction of a new schoolhouse or an addition to a present schoolhouse at the same site shall not be submitted for a vote more than twice during any twelve month period and in no event shall a proposition be submitted for a vote less than ninety days after a vote on the same or similar proposition.

Respondent placed the bond proposition for construction of a middle school before the voters in March 2000, February 2002 and June 2002 " in compliance with the statutory time restrictions.  Thus, petitioner Kavitsky"s claim is without merit.  Moreover, absent evidence of violation of Education Law "416(6), there is no basis for the issuance of an order enjoining a vote on any future bond proposition.

     In light of the above procedural and substantive determinations, I need not address the parties" remaining contentions.

     As a final matter, I note that petitioner Kavitsky has submitted an "application for an order to the school district to produce documents."  The application seeks to obtain certain documents requested by petitioner from the board pursuant to the Freedom of Information Law ("FOIL")(Public Officers Law "89).  Petitioner claims the board has failed to comply with that request and seeks an order from the Commissioner pursuant to "276.5 of the Commissioner"s regulations to compel such document production as "additional evidence."  In essence, petitioner Kavitsky seeks enforcement of FOIL by the Commissioner of Education.  The appropriate forum for addressing alleged FOIL violations is the Supreme Court of the State of New York (Public Officers Law "89[4]; Appeal

of Rowe , 41 Ed Dept Rep ___, Decision No. 14,660).  Therefore, petitioners" request is denied.