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Decision No. 15,004

Appeal of PETER WILLIAM SHERRILL from action of the Board of Education of the City School District of the City of Mount Vernon regarding a budget vote.


Decision No. 15,004

 (December 17, 2003)


Aiello & Cannick, attorneys for respondent, Jennifer A. Fremgen, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges the sufficiency of information presented to the voters by the Board of Education of the City School District of the City of Mount Vernon ("respondent") in connection with the June 3, 2003 school budget vote.  The appeal must be dismissed.

Petitioner contends that respondent concealed facts about staff reductions and State aid funds restored by the State Education Department until after the budget vote, so that voters would be induced to vote in favor of the proposed budget.  Specifically, petitioner alleges that respondent deliberately waited until the day after the budget vote to announce a large number of staff reductions, including reductions to security staff.  Petitioner also claims that respondent"s proposed budget reflected a $4 million cut in State aid for the 2003-2004 school year, but that respondent failed to note that the State actually restored $2.8 million in funding.  Petitioner further claims that respondent did not adequately justify a large increase in the budget for health insurance.  Petitioner additionally contends that respondent failed to approve the proposed budget on the first vote at its April 23, 2003 board meeting, but subsequently adopted the budget after an executive session, solely to avoid State intervention and revelation of the pending staff cuts.

Petitioner concludes that the alleged actions and omissions so tainted the voting process that the budget vote should be annulled, and requests that I order a new election.  Petitioner also notes that the budget passed by fewer than 200 votes, and that only 2,800 people voted, out of a population of 70,000 registered voters.  He contends that there should be a required percentage of voters necessary to approve a proposed budget.  Petitioner"s request for interim relief was denied on July 29, 2003.

Respondent asserts that the procedures used to present the proposed budget to the voters fully complied with all legal requirements.  Respondent contends that it presented the information in the categories required by 8 NYCRR ""170.8 and 170.9.  Respondent further asserts that the proposed budget showed losses in terms of salaries over the 2002-2003 school year, which implicitly demonstrated staff reductions.  Respondent also maintains that there is no legal requirement for a minimum percentage of registered voters to approve a budget; and that, in any event, petitioner has not established that the outcome of the budget vote would have been different if more detail had been provided on budget items.

To invalidate the results of an election, petitioner must establish not only that irregularities occurred, but also that any irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, aff"d 26 NY2d 709; Appeal of Shafer, 43 Ed Dept Rep ___, Decision No. 14,900; Appeal of Grant, 42 id. ___, Decision No. 14,816; Appeal of Huber, et al., 41 id. 240, Decision No. 14,676) were so pervasive that they vitiated the electoral process (Appeal of Meyer, et al., 40 Ed Dept Rep 34, Decision No. 14,413; Appeal of Roberts, 33 id. 601, Decision No. 13,162) or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Shafer, supra; Appeal of Grant, supra; Appeal of Huber, supra).  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 Mead, 42 Ed Dept Rep ___, Decision No. 14,881).  Furthermore, in an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of General, 43 Ed Dept Rep ___, Decision No. 14,948; Appeal of Vazquez, 42 id. ___, Decision No. 14,841).

Petitioner"s request to invalidate the results of the June 3, 2003 budget vote and order a new election is denied, because petitioner has failed to establish that respondent"s actions violated any statutory or regulatory requirements (Appeal of Meyer, et al., supra).  Petitioner has not established that the information in the budget as presented by respondent violated the requirements of 8 NYCRR ""170.8 or 170.9.  The proposed budget clearly advised voters that there were decreases in staff salaries as compared to 2002-2003, which, as respondent states, usually reflect staff cuts.  The noted decreases would have sufficiently alerted voters to permit them to question respondent about the details if the voters desired, and a line-by-line impact analysis of each budget category is not required in the proposed budget.

As to the issue of restoration of $2.8 million in State aid, the record before me does not disclose when the district determined that these funds would be restored, how the alleged restoration of State aid funds was related to the overall decrease of $4 million noted in the proposed budget, or whether any restored funds were subsequently considered in calculating the tax levy for 2003-2004.  Petitioner provides no details, and respondent generally denies petitioner"s allegations concerning the amount of State aid the district would receive in 2003-2004 without specifically addressing the alleged restoration of $2.8 million.  I am thus unable to find that there is any inaccuracy in the amount of State aid reflected in the proposed budget.

Petitioner further alludes to the large increase in health insurance costs, but the increase was properly included in the budget and disclosed to the taxpayers.  Petitioner fails to allege any facts to show that the increase noted in the budget is not justified or is in any way illegal or improper.  Similarly, petitioner has failed to establish any impropriety or illegality in the manner by which respondent adopted the proposed budget.

In sum, petitioner has not established that the proposed budget adopted by respondent and approved by district voters, or the process used by respondent to discuss and adopt the proposed budget, violated any statutory or regulatory requirement.  Additionally, petitioner"s contention -- that there should be a required minimum percentage of registered voters to approve a budget -- is completely unsupported by law.

Petitioner has also failed to show that any actions or omissions by respondent had any effect on the outcome of the election (Appeal of Shafer, supra; Appeal of Grant, supra).  The parties do not provide the exact vote count, but petitioner states that the budget was passed "by less than 200 votes."  Petitioner has not submitted affidavits or other evidence to show that any voter was misled by an alleged action or omission of respondent, much less that a sufficient number of voters would have voted differently, and changed the outcome of the budget vote, had they received the additional information cited by petitioner.  Moreover, there is simply no evidence that the alleged irregularities were so pervasive as to vitiate the electoral process or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.