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Decision No. 14,984

Appeals of HENRY J. BARTOSIK from action of the Board of Education of the Ellenville Central School District regarding the operation of an educational access television channel.


 (November 19, 2003)


Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Felice A. Bowen, Esq., of counsel


     MILLS, Commissioner.--Petitioner, in two separate appeals, challenges the operation of an educational access television channel by the Ellenville Central School District ("the district").  Because the appeals involve common issues of law and fact, they are consolidated for decision.   The appeals must be dismissed.

     The district operates an educational access television station, Channel 20, that is broadcast to the public through a link to local cable television.  According to the district, Channel 20 features educational programming to: inform the community about district operations and initiatives; publicize district sponsored events; televise events of community interest; and provide other educationally informative programming.

Although the record is not entirely clear, it appears that the educational television station is operated as part of the district"s curriculum.  The district states that the operation of the station improves classroom instruction by giving students hands-on experience in the technical areas of television programming and broadcasting.  Petitioner acknowledges that students operate the cameras and other equipment required for the broadcasts. 

     On October 24, 2002, Channel 20 broadcast the Helen Winer show in which Helen Winer, the host, interviewed Leonard Distel, one of two candidates for county legislature.  In his first appeal, petitioner claims that through this broadcast, respondent misused district funds to promote Mr. Distel"s candidacy.  Petitioner requests that respondent cease similar telecasts and adopt operational guidelines for Channel 20. 

Respondent contends that all candidates for office were invited to appear, and the broadcast was informative in nature and did not exhort viewers to vote for a particular candidate.  In addition, respondent contends that the appeal should be dismissed as moot and for lack of standing.

     The Commissioner of Education 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 Johnson, 41 Ed Dept Rep 407, Decision No. 14,727; Appeal of Goldin, 38 id. 322, Decision No. 14,044).  In this case, respondent contends that the appeal is moot because the district has changed its policy and will no longer permit candidates for local public office to appear on Channel 20.  Respondent, however, further states that the district will continue to allow candidates for school board membership to appear on Channel 20.  In his prayer for relief, petitioner requests that respondent adopt written operational guidelines for Channel 20 and cease broadcasts advocating a partisan position.  Since the relief requested relates to all election-related broadcasts, I decline to dismiss the appeal as moot.

Respondent also claims that petitioner lacks standing to bring this appeal because he has not alleged any personal injury from the broadcast at issue. Petitioner is a district resident. School district residents have standing to challenge alleged illegal expenditures of district funds (Appeal of Gargan, 40 Ed Dept Rep 465, Decision No. 14,528; Appeal of Goldin, supra).  Therefore, I find that petitioner has requisite standing to maintain this appeal.

Petitioner contends that the district misused public funds by permitting Channel 20 to advocate a partisan position. The use of public funds to convey favoritism of one candidate over another is improper (See Phillips v. Maurer, 67 NY2d 672; Appeal of Gravink, 37 Ed Dept Rep 393, Decision No. 13,888).  "To educate, to inform, to advocate or to promote voting on any issue may be undertaken, provided it is not to persuade nor to convey favoritism, partisanship, partiality, approval or disapproval by a State agency of any issue, worthy as it may be" (Stern v. Kramarsky, 84 Misc 2d 447).  The issue here is whether respondent used public funds to promote a partisan position.

Respondent maintains that the broadcast was informational in nature and did not exhort voters to vote for a particular candidate.  In support of this position, respondent provides an affidavit of host Winer.  She states that she invited all candidates to appear on the broadcast, but only Mr. Distel accepted.  She states that the broadcast was informational in that she discussed with Mr. Distel his experience and the county legislator position.  She maintains that viewers were not exhorted to vote for Mr. Distel. 

     In response, petitioner submits affidavits from two individuals who claim that they spoke with the other candidate for the office.  According to these individuals, the other candidate told them that she did not receive an invitation to appear on the broadcast.  While I have accepted the affidavits, I do not accord them great weight because they largely contain hearsay as to what the other candidate purportedly stated to these individuals. Petitioner has not provided an affidavit from the other candidate.  In addition, petitioner has not provided a copy or transcript of the broadcast. 

     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 Hubbard, 43 Ed Dept Rep _____, Decision No. 14,956; Appeal of Siwula, 41 id. 375, Decision No. 14,718).  On the facts before me, I do not find that petitioner has substantiated his contention that the district used public funds to promote and favor a particular political candidate. 

     In his second appeal, petitioner contends that the district violated Article VIII, section 1 of the New York State Constitution by permitting the use of public property to advertise a private business and related products during a November 21, 2002 Channel 20 broadcast entitled "The Two Joes."  This was a movie discussion program between two on-camera hosts.  Petitioner requests that the district cease alleged illegal advertising on Channel 20, adopt operational guidelines for the Channel, and a curriculum for educational television programs.

       Respondent denies that the hosts advertised a commercial enterprise during the broadcast, and contends that petitioner lacks standing.  Respondent also contends that the subject matter of the broadcast, popular culture and film, furthered the purpose of educational television, which is to provide educationally informative programming.

As stated above, school district residents have standing to challenge alleged illegal expenditures of district funds (Appeal of Gargan, supra; Appeal of Goldin, supra).  Here, petitioner alleges that the district used its funds to engage in unconstitutional advertising for commercial entities.  Accordingly, I find that petitioner has standing to appeal the use of such funds.

Article VIII, section 1 of the New York State Constitution provides in pertinent part that, " district shall give or loan any money or property to or in aid of any individual, or private corporation or association, or private undertaking...." Petitioner alleges that the hosts of the broadcast violated this constitutional provision by making reference to a local video store, discussing movies during the program, and displaying movie posters in the background.

I have reviewed a tape of the broadcast and do not find a constitutional violation.  During the broadcast, the hosts thanked a local video rental store for contributing a free rental to the program, which was used in an on-air movie trivia game, and expressed their opinions about movies, old and new.  Education Law "1709(12) authorizes a school district to accept gifts, and it is permissible for the district to acknowledge a gift through publishing a statement of acknowledgement (See Op. State Compt. 90-6).  I do not find that the hosts' expression of gratitude for the gift, their discussion of movies, or the display of posters in the background to be commercial advertising in violation of the State Constitution.  Any advertising effect would be an incidental benefit to a commercial entity, which would not violate the Constitution (Murphy v. Erie County, 28 NY2d 80; Imburgia v. City of New Rochelle, et al., 223 AD2d 44; Tribeca Community Assoc., Inc. v. NYS Urban Development Corp., 200 AD2d 536; Appeal of American Quality Beverages, 42 Ed Dept Rep 144, Decision No. 14,804).

I have reviewed petitioner"s remaining contentions and find them to be without merit.