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Decision No. 15,019

Appeal of ELISABETH HAGER and MARY SCHEUERMAN from action of the Board of Education and the Superintendent of the Pittsford Central School District regarding the use of public funds.


Decision No. 15,019 

(January 23, 2004)


Harter, Secrest & Emery LLP, attorneys for respondent, Edward F. Premo, II, Esq., of counsel


MILLS, Commissioner.--Petitioners challenge certain actions of the Board of Education of the Pittsford Central School District ("the board") and its superintendent (collectively referred to as "respondents") in advance of a school facilities bond referendum.  The appeal must be dismissed.

On October 15, 2002, the board resolved to place a proposition before the voters seeking approval to spend $106,450,000 for capital improvements and authorization to issue bonds to finance the improvements.  The proposed project included renovations and reconstruction at every district school building and construction of a new middle school.  District voters approved the referendum on December 3, 2002.  This appeal ensued.

Petitioners contend that respondents improperly used district resources to advocate a "yes" vote on the referendum. Petitioners do not seek to overturn the election results.  They instead request that I reprimand respondents, instruct them to refrain from such improper advocacy in the future and order them to publish in the district newsletter the amount of district funds expended to produce and distribute a video on the project and mailings to district residents.

Respondents deny that they engaged in any improper advocacy and assert that the information they supplied to district voters was factual.  Respondents contend that petitioners have not met their burden of proof and that two of petitioners" claims should be dismissed as untimely and should be barred by laches.

Initially, I must address several procedural issues.  Respondents object to petitioners" reply and memorandum of law.  The purpose of a reply is to respond to new material or affirmative defenses set forth in the 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 Goldin, 43 Ed Dept Rep ___, Decision No. 14,904; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Petitioners submitted a lengthy reply that mainly reargues the points made in the petition.  There are also numerous additional exhibits that should have been included with the petition and petitioners have not asserted that the materials were unavailable to them at the time they submitted their petition.  While I have reviewed petitioners" submissions, I have not considered those portions of the reply containing new allegations or exhibits which are not responsive to new material or affirmative defenses set forth in the answer.

A memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of Hubbard, 39 Ed Dept Rep 363, Decision No. 14,259; Appeal of Coombs and Baker, et al., 34 id. 253, Decision No. 13,301).  Therefore, I have not considered the new assertions regarding respondents" conduct raised in petitioners" memorandum.  Petitioners also request additional relief in the form of removal of the board members and the superintendent pursuant to Education Law "306 in their memorandum of law.  Petitioners must request any relief they believe they are entitled to in the petition (8 NYCRR "275.10).  Furthermore, requests for removal require specific notice, which petitioners failed to provide (8 NYCRR "277.1).  Therefore, I will not entertain petitioners" removal request. 

Respondents contend that petitioners" claims regarding the use of the title "Revitalization Plan" and the use of a logo on all literature regarding the plan should be dismissed as untimely.  An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR "275.16).  Respondents began to use the term "Revitalization Plan" and the logo more than 30 days prior to the commencement of this appeal on January 2, 2003.  Moreover, petitioners do not request that I annul the December 3, 2002 bond referendum or order a new vote.  Because the vote itself is not at issue, petitioners" claims regarding the term "Revitalization Plan" and the logo are untimely (Appeal of Tesser, 42 Ed Dept Rep ___, Decision No. 14,876; Appeal of Carroll, et al., 42 id. ___, Decision No. 14,871). 

A board of education has a right to present informational material to the voters concerning a proposed annual budget or propositions (Education Law "1716, Appeal of Eckert, 40 Ed Dept Rep 433, Decision No. 14,520; Appeal of Carroll, supra).  A school district may disseminate only objective, factual information (See Stern v. Kramarsky, 84 Misc.2d 447; Appeal of Eckert, supra; Appeal of Carroll, supra).  While a board of education may disseminate information "reasonably necessary" to educate and inform voters, its use of district resources to distribute materials designed "to exhort the electorate to cast their ballots in support of a particular position advocated by the board" violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Maurer, 67 NY2D 672; Appeal of Eckert, 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 Eckert, supra; 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 Eckert, supra; Appeal of Hubbard, supra; Appeal of Miller, 39 Ed Dept Rep 348, Decision No. 14,256).  Even indirect support, such as a school board giving a PTA access to its established channels 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, supra; Appeal of Meyer, 39 Ed Dept Rep 285, Decision No. 14,034; Appeal of Saba, 36 id. 233, Decision No. 13,710).

The district"s web page included a link to the Parent Teacher Student Association ("PTSA") web page.  Petitioners contend that this link constituted an improper use of the district"s communication channels for advocacy, because the PTSA advocated a "yes" vote on its page.  Respondents contend that the district site has provided a link to the PTSA site since 1998. 

I do not find the mere presence of the link on the district site to be an improper use of district communication channels.  There is no evidence that the district website affirmatively directed visitors to the link, or that the link is otherwise inconsistent with the content of the district"s site.  However, if respondents have not already done so, I urge them to consider placing a disclaimer on the district"s website to clarify that the district is not responsible for facts or opinions contained on any linked sites.

Finally, I have reviewed the materials submitted by petitioners in support of their contention that respondents engaged in improper partisan advocacy.  Among other things, petitioners argue that respondent, through use of videotape, informational mailings and district meetings, depicted the district"s school buildings as old and outdated.  Petitioners object to the use of black and white photographs of each school with its date of construction, the persistent use of words like "modernize" and the concept of the passage of time having an impact on the schools.  Petitioners further allege that respondents" omission of information about past renovations presented a slanted view of the facilities.  Petitioners contend that, taken together, the overall tone of the information disseminated by respondents improperly advocates a "yes" vote by implying that older school buildings are inadequate.  However, my review of the record reveals that the materials challenged by petitioners that were distributed by respondents in connection with the referendum are primarily factual and informational in nature and cannot be fairly construed as advocating a "yes"vote.