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Decision No. 14,956

Appeal of GEORGE R. HUBBARD from action of the Board of Education of the Greece Central School District regarding a district newsletter.



(September 17, 2003)


Harris Beach LLP, attorneys for respondent, Laura M. Purcell and James A. Spitz, Jr., Esqs., of counsel


MILLS, Commissioner.--Petitioner, a taxpayer and member of the Board of Education of the Greece Central School District ("respondent"), challenges materials published in a district newsletter.  The appeal must be dismissed.

Respondent publishes a bi-monthly newsletter, "The Connection."  In the September/October 2002 issue, an article appeared entitled "Dramatic Rise in Regents Diplomas."  Within that article appeared the following passage:

Greece experienced a 10% gain in Regents diplomas earned last year, as compared with the year before.  This large increase, according to District officials, is the highest jump we"ve seen in recent history.  In past years, the District may have seen a 1% or 2% increase in the number of students earning Regents diplomas.  Further, Greece students who were high school seniors in June 2002 " now defined by New York State as the "1998 Cohort" " met New York State graduation assessment requirements in very high numbers:  93% of our students met the state"s standard in English, 96% in math, 96% in global history, and 93% in U.S. history.

The author attributed this information to "June 2002 Graduation Data." 

Petitioner challenges the accuracy of this passage, which he describes as "misinformation," and objects to using public funds in this process, which he states is "tantamount to exhorting a yes vote for future budgets." 

Petitioner presents a table which he constructed from two "data sets" regarding graduation statistics that he obtained from the school district in November 2002.  This table sets forth over a period of eleven years the number of total graduates, number of Regents diplomas, percentage of Regents diplomas, and percentage change for Regents diplomas from the previous school year.  From these figures, petitioner concludes that respondent has used its newsletter to mislead the public as to the effectiveness of its schools.  For example, using the data set which included the 2001-2002 school year, petitioner concludes that the increase in Regents diplomas from the previous year was 9.3% (petition, paragraph 7), or 9.8% (petition, paragraph 16), not 10%, as presented in the district newsletter.  Petitioner also finds fault with other portions of the quoted passage, claiming that they were also misleading.

Petitioner requests that I order respondent to publicly retract statements in "The Connection" and  reprint the essence of the contested article with corrected information.  Petitioner further requests that respondent adopt a policy on School Board Code of Ethics "that prohibits communicating public information that fails to meet a test for accuracy, completeness, and objectivity as appropriate in the context of being read by the public" and  includes a "truth in advertising" standard with an appeals procedure.  Finally, petitioner requests that respondent be instructed to cease and desist in using public money "to disseminate public information that cannot be substantiated for accuracy, completeness, and objectivity."

I do not regard the challenged material, published in the fall of 2002, as having any connection to a budget vote, which would not have occurred until May 2003, more than six months later.  Even if I did consider the material in that context, I would find it informative and not in any way an exhortation to voters to approve a school budget (See Phillips v. Maurer, 67 NY2d 672; Appeal of Goldin, 40 Ed Dept Rep 628, Decision No. 14,572; Appeal of Bach, 32 id. 273, Decision No. 12,828; Appeal of Ruiz, 32 id. 108, Decision No. 12,774; cf. Appeal of Hubbard, 39 id. 363, Decision No. 14,259).

It is evident from the petition that, beyond his objection to the mathematical calculations regarding Regents diplomas, petitioner"s real concern is that certain information that he believes is important was not included in the article.  For example, according to petitioner, the article does not tell the reader that approximately 67% of students graduating in June 2002 received Regents diplomas, or that the percentage of students receiving Regents diplomas in June 2001 was slightly lower than the percentage for June 2000.

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Siwula, 41 Ed Dept Rep 375, Decision No. 14,718; Appeal of Bordeaux, 38 id. 662, Decision No. 14,112).  Here, petitioner has failed to satisfy that burden.  Therefore, petitioner"s requests that I direct retraction of the article, direct its republication, and in essence guarantee the accuracy, completeness, and objectivity of future publications, are therefore dismissed.

Petitioner also requests that I make certain orders with respect to a code of ethics.  General Municipal Law "806 requires school districts to adopt a code of ethics "setting forth for the guidance of its officers and employees the standards of conduct reasonably expected of them."  The statute further provides some mandatory content, for example, regarding financial conflicts of interest.  Petitioner does not allege that respondent has failed to comply with the statute, and indeed includes a copy of its code of ethics as an exhibit.  The statute further provides:  "Such codes may regulate or prescribe conduct which is not expressly prohibited by this article but may not authorize conduct otherwise prohibited."  Petitioner seeks to require the addition of provisions which are not mandatory, but cites no authority for the proposition that the Commissioner of Education may require a board of education to adopt a code of ethics with provisions that are not required by statute.  As a result, petitioner"s request that I direct the adoption of particular provisions he advocates must be dismissed.

I further note that respondent"s code of ethics provides, in pertinent part:

Board members and their staff commit themselves to . . . ACTING as part of an educational team with mutual respect and regard for each other"s respective responsibilities and duties, recognizing that the strength of a school board is in acting as a board, not as individuals.

I also note that on November 19, 2002, only three days before the commencement of this appeal, respondent  adopted, by an 8-1 margin, a resolution proposed by petitioner to explore the possible use of a mathematical model for reporting the percentage of Regents diplomas conferred by the district on a year-by-year basis, which would bring consistency and accuracy to such reporting in future publications.  I urge the parties to work constructively toward resolving their respective differences in the future.