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Decision No. 15,020

Appeal of SAMUEL KIRSCHENBAUM from action of the Board of Education of the Herricks Union Free School District regarding an annual meeting.



(January 23, 2004)


Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Lawrence J. Tenenbaum and Kimberly M. Romana, Esqs., of counsel


MILLS, Commissioner.--Petitioner challenges the actions of the Board of Education of the Herricks Union Free School District ("respondent") regarding propositions presented at the district"s June 3, 2003 annual meeting.  The appeal must be dismissed.

On June 27, 2000, district voters authorized the issuance of bonds to fund additions, alterations and improvements to district buildings.  Respondent states that the projects for which those funds were authorized were completed under budget by $2,269,319.

According to respondent, although the authorized alterations and improvements were completed, the roofs of many of the district"s buildings were in poor condition and their respective warranties were set to expire.  Accordingly, in June 2002, it hired an architectural firm to survey the roofs and prepare a report.  The report called for roofing repairs totaling $6,384,211.

At a board meeting in December 2002, the architect presented the report and the superintendent proposed a financing plan for the first phase of the roof repair project.  The minutes from that meeting indicate that the superintendent suggested seeking voter approval to transfer some reserve funds and also to redirect the $2+ million left over from the project authorized in 2000.  He explained that by doing so, the first phase of the roofing project would not cost the taxpayers additional taxes because those funds already existed.  In total, $2,699,106 would be available for the first phase of a roof repair project.

At a board meeting on March 20, 2003, respondent resolved to place a proposition on the ballot at the next annual meeting seeking voter approval for the first phase of the roof replacement project.  The original language of the proposition called for transferring $429,787 from a repair reserve fund to a new "Capital Reserve Fund 2003," and using "$2,269,319 of the unissued bonds heretofore authorized in 2000" to fund the project. 

By letter to respondent dated May 1, 2003, petitioner expressed, among other things, his concern that respondent"s plan to use unexpended funds from the 2000 authorization for roof repairs violated "165 of the Local Finance Law.  By response letter dated May 13, 2003, respondent"s bond counsel explained they agreed with petitioner that "165 prohibits such a diversion of funds, and for that reason, they had advised the district of the necessity to submit a separate proposition to the voters authorizing the issuance of new bonds for the roof repair project.  They also explained that respondent had cash on hand from the 2000 project to pay off the debt from that bond authorization.

At the June 3, 2003 annual meeting, respondent presented two propositions to the voters.  Proposition 1 requested authorization for an annual budget appropriation of $66,408,992 for the 2003-2004 school year.  Proposition 2, regarding the roof repair project, no longer contained the phrase concerning "$2,269,319 of the unissued bonds heretofore authorized in 2000." Instead, the final version of the proposition sought authorization only to issue new bonds for that amount.  The final version stated:

RESOLVED (a) That the Board is hereby authorized to reconstruct and/or replace various District building roofs, and to expend therefore an amount not to exceed $2,699,106; (b)that a tax is hereby voted in the amount of not to exceed $2,269,319 to pay a portion of such cost, said tax to be levied and collected in installments in such years and in such amounts as shall be determined by said Board of Education, and that in anticipation of said tax, bonds of the District are hereby authorized to be issued in the principal amount of not to exceed $2,269,319, and a tax is hereby authorized to pay the interest thereon as the same shall become due and payable; and (c) that the $429,787 balance of the Project cost shall be paid from moneys in a reserve fund which the Board of Education of the District is hereby authorized to establish, to be designated "Capital Reserve Fund 2003" (the "Fund"); the probable term of which will not exceed five (5) years from the date of its establishment; the ultimate principal amount therein to a total $429,787 plus interest earning thereon; such amount to be provided from funds on hand and available to be transferred thereto from a repair reserve fund entitled "Repair Reserve"Major Projects," heretofore established by the District on August 17, 1987; and the moneys in said Fund are hereby authorized to be expended for the specific purpose of paying a portion of the cost of the Project. (Emphasis added.)

The voters approved the budget proposition by 538 votes and proposition 2 by 745 votes.

Petitioner contends that respondent failed to inform the public about the true nature and costs relating to proposition 2.  He asserts that had the voters been fully informed, they would have defeated the proposition.  He also alleges among other things, that several roofs should still be under warranty, that all other roofing repairs should have been accomplished as part of the 2000 building renovation project, that respondent has been negligent in maintaining school property, and that respondent never approved a new roof construction project.  Petitioner further contends that respondent never revealed the full $6+ million cost of the project, that respondent"s summary of proposition 2 in notices mailed to voters in April and May of 2003 was misleading, and the entire proposition was a ruse to avoid returning unexpended funds from the prior bond authorization and avoid the consequences of Local Finance Law "165.

Petitioner also objects to respondent"s retention of an architectural firm located outside of Nassau County, questions whether a member of respondent board had improper ties to that firm, and alleges that respondent never disclosed the existence of the firm"s report or made it available for public inspection.  Although the petition focuses on proposition 2, petitioner requests that I annul the results of the June 3, 2003 vote, which encompasses both propositions.

     Respondent asserts that it acted in good faith, fully disclosed at several public meetings all information required for voters to make an informed decision about proposition 2 and properly submitted both propositions to the public.  Respondent maintains it had authority to hire the architectural firm and complied with all applicable provisions of law, including the Local Finance Law, after consulting with bond counsel.

In addition, respondent asserts that the literature distributed to the public prior to the election accurately summarized the financial impact of the financing plan and was not misleading.  Respondent asserts that it intended to partially redeem the outstanding obligations from the prior bond authorization, and thereafter, to issue new bonds in an amount equal to the unused portion of the first bond issue ($2,269,319).  In that way, there would be no additional tax increase because taxes had already been increased to pay for the total anticipated cost of the 2000 project.  Respondent contends that petitioner fails to demonstrate that any improprieties occurred or that any alleged irregularities affected the outcome of the election.

I must first address several procedural issues.  Petitioner submits a reply brief.  The Commissioner's regulations do not provide for a reply memorandum of law and petitioner did not request permission to submit additional information.  Additionally, in his reply and memorandum of law, petitioner raises several issues not included in the petition.  A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (8 NYCRR ""275.3 and 275.14; Appeal of Devany, 41 Ed Dept Rep 466, Decision No. 14,747; Appeal of Krantz, 38 id. 485, Decision No. 14,077).  Similarly, a memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of T.M., 41 Ed Dept Rep 443, Decision No. 14,740; Appeal of Muench, 38 id. 649, Decision No. 14,110).  Therefore, while I have reviewed petitioner"s submissions, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

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 unless any delay is excused for good cause shown (8 NYCRR "275.16).  To the extent petitioner complains about events occurring in 2002, such as the hiring of the architectural firm and occupancy of the community center and administration buildings, those events clearly occurred more than 30 days prior to the service of the petition on June 30, 2003.  Accordingly, the portions of the petition relating to those events are untimely.

The appeal must be dismissed on the merits. To overturn an election, petitioner must prove improper conduct on the part of respondent, such as a violation of the Education Law or the Commissioner's regulations.  Petitioner must also establish that the alleged irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Maliha, 41 Ed Dept Rep 367, Decision No. 14,716; Appeal of Brown, 38 id. 816, Decision No. 14,151), were so pervasive that they vitiated the fairness of the electoral process (Appeal of Maliha, supra; Matter of Gilbert, 20 Ed Dept Rep 174, Decision No. 10,366), or demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Matter of Levine, 24 Ed Dept Rep 172, Decision No. 11,356; aff"d sub nomCapobianco v. Ambach, 112 AD2d 640).  In an appeal to the Commissioner, petitioner bears the burden of establishing the facts upon which relief is sought (8 NYCRR "275.10; Appeal of L.S., 41 Ed Dept Rep 270, Decision No. 14,683).

Petitioner has failed to show that any irregularities occurred.  The evidence in the record contradicts petitioner"s allegation that respondent failed to inform the public about proposition 2.  The record demonstrates that respondent conducted several public meetings at which the roof project, its financing and proposition 2 were discussed.  The superintendent, along with the architect, presented information about the need for roof repairs at a respondent"s meeting on December 19, 2003.  The meeting minutes reflect that the architect discussed his firm"s report, the scope of the entire project and its anticipated cost ($6,384,211).

In addition, the minutes of that meeting indicate that the superintendent suggested seeking voter approval to issue bonds for an amount equal to that of the unexpended funds from the previous bond issue and to transfer money in the reserve fund to a capital reserve fund to fully fund the first phase of the project.  The superintendent also explained that these steps would maximize the amount of state aid respondent could receive for the project, and that respondent could determine how to finance the remaining roof repairs after phase one was completed.

Minutes of two other board meetings also reflect public discussion of the roof project and the proposed financing.  At a March 13, 2003 meeting, the superintendent explained that although the original plan had been to replace the roof of the district"s Community Center, work on that building would not qualify for state aid.  He explained further that since the Governor had proposed a reduction in state aid for projects approved after July 1, 2003, it was more prudent to use all available funds for school building repairs that could be approved before that deadline.

The minutes of the March 20, 2003 meeting, reflect that respondent"s president made a resolution to submit proposition 2 at the annual meeting.  The minutes also reflect that the superintendent again explained the proposition, which was followed by public discussion.  In addition, the district mailed to district voters two documents about the vote, the budget and proposition 2.  Thus, I find that petitioner has not met his burden of proving that respondent failed to provide the public sufficient information about proposition 2.

Petitioner also claims that the propositions as presented in the brochures mailed to voters in April and May were misleading.  The April brochure states that respondent seeks approval to reallocate funds remaining from the prior construction project to the roof repair project.  The May flyer states that authorization is sought for a new bond issue and a new tax in the same amount as the unused portion of the prior bond issue.  While these statements may be somewhat confusing, I conclude that the information presented was not intended to mislead the public, but rather was intended to explain in simple terms the complicated bonding process and the net effect of the project"s financing on future taxes.  The proposition put before the voters clearly seeks authorization for a new bond issue and tax levy to repay it.

Moreover, petitioner presents no evidence that any actions by respondent or any alleged lack of disclosure actually affected the outcome of the vote.  The budget proposition passed by 538 votes and proposition 2 passed by 745 votes.  Petitioner does not provide an affidavit from anyone who voted for either proposition stating that he or she would have voted differently but for respondent"s actions (Appeal of Maliha, supra; Appeal of Krantz, supra).  Petitioner has also failed to demonstrate that the alleged irregularities were so pervasive that they vitiated the electoral process.  Nor has he demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.

In addition, petitioner has failed to prove that respondent did not comply with Local Finance Law "165(a), which provides, in pertinent part:

...In the event that any portion of the proceeds, inclusive of premiums, from the sale of bonds . . . is not expended for the object or purpose for which such obligations were issued, such portion shall be applied only to the payment of the principal of and interest on such obligations respectively...

Petitioner argues that respondent is trying to improperly divert the unused proceeds of the 2000 bond issue for the roof project in contravention of "165.  Although the original language of the proposition proposed redirecting "$2,269,319 of the unissued bonds heretofore authorized in 2000" to fund the roof project, this language was changed in the actual proposition presented to voters.  Moreover, the superintendent avers that his use of such wording was merely an attempt to simplify the complex bonding process.

I find that the final version of proposition 2 complies with "165.  It clearly states that "bonds of the District are hereby authorized to be issued in the principal amount of not to exceed $2,269,319."  It seeks voter approval to issue new bonds, not to use the actual unexpended proceeds approved in the June 2000 referendum.  The disposition of the unexpended proceeds from the 2000 bonds is not included in the proposition.  Rather, the record explains that the unexpended proceeds would be applied to pay debt service on the 2000 bonds in accordance with "165 (See, e.g., Ops. State Compt. 95-13, 68-104 and 67-661).  Accordingly, petitioner has failed to demonstrate that respondent has not complied with the Local Finance Law.


I have considered petitioner"s remaining contentions and find them without merit.