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Decision No. 15,490

Appeal of JOHN M. HIMMELBERG, JR. and ANDREW J. LITTLE from actions of the Board of Education and Superintendent of the Fairport Central School District regarding a district election.

Decision No. 15,490

(November 21, 2006)

David A. Hoover, Esq., attorney for respondents

MILLS, Commissioner. Petitioners, unsuccessful school board candidates, challenge the actions of the Superintendent and Board of Education of the Fairport Central School District (“respondents”) regarding the May 16, 2006 school board election.  The appeal must be sustained in part.

      On May 4, 2006, the president of the Fairport Education Association, the union representing the district’s teachers, sent an email from his district account to the district accounts of all union members containing the official union endorsement of two candidates for seats on the board.  The email also set forth the reasons the union chose not to endorse petitioners and stated “they have the wrong ideas and are in league with the wrong crowd.”  Further, the email urged union members to “get involved” in the election and to use email to “friends, family and neighbors to get the word out” to support the endorsed candidates. 

Petitioner Himmelberg (“Himmelberg”) emailed the superintendent and the president of the board on May 4 to object to the union email.  He contended that the email constituted an improper use of district resources for partisan political purposes and sought an opportunity to discuss remedies.  He also stated that a district employee had informed him that the board apparently had no policy governing use of the district’s email system.  On May 8, the superintendent replied that the union had the contractual right to use the district’s email system to communicate with its members and that neither he nor the board endorsed the union president’s message. 

A series of emails between Himmelberg and the superintendent followed.  Himmelberg reiterated his objections, argued that the contract could not authorize improper use of the district system, asked the superintendent to stop the alleged abuse and asked for the opportunity to reply to the endorsement email.  On May 8, the superintendent notified Himmelberg that he would discuss the matter with the district’s attorney. 

On May 9, the union president sent all members an email criticizing another district resident previously identified as a supporter of petitioners’.  Himmelberg forwarded the message to the superintendent and repeated his objections.  On May 10, the union secretary sent all members an email through the district system in which he personally endorsed the two candidates chosen by the union and urged union members to “energize the pro-education community…and get them to the polls.”  On May 11, Himmelberg protested to the superintendent and the president of the board.

Also on May 10, the union president sent another email through the district system to all members stating that Himmelberg had questioned his right to communicate with them by email and that “we now experience an all out assault” and “will not be cowed by these tactics.”  Himmelberg again forwarded the message to respondents and asked them to stop the alleged misuse of district resources. 

On May 11, 2006 the superintendent forwarded a legal opinion from the district’s counsel to the petitioners.  That opinion quoted the relevant provision of the district’s contract with the union, which granted the union “the right to use office machines and equipment for [union] business”  and noted that the contract had been construed to permit union use of district email “since the earliest days of its use” in the district.  The district’s attorney asserted that the combination of contract language and longstanding practice clearly authorized the union’s use of district email for union business.  He stated that the Commissioner had not directly ruled on the question whether a union had the right to use email to endorse candidates or advocate certain positions in district elections.  He opined that, because the respondents had not known about the email in advance or approved its distribution, no violation of the law had occurred.  Also on May 11, the superintendent notified Himmelberg by email that the situation “may very well lead to litigation” and that he could not continue to debate the matter. 

On May 18, after the election, the union distributed a newsletter to teachers in their district mailboxes.  The newsletter included a message from the union president discussing the “hard core haters leading the effort against our school district,” detailing their natures and flaws and describing how union members could defeat them.  While the newsletter did not refer to petitioners by name, it did name individuals the union president previously had identified as associated with petitioners.  Himmelberg protested to the superintendent and the president of the board that this constituted another improper use of district resources for partisan political purposes.  This appeal ensued. 

Petitioners assert that the superintendent, who has since retired, and the board improperly permitted the use of district resources for partisan political purposes and failed to halt or remedy the practice when placed on notice of the repeated violations.  They argue that the union contract cannot authorize illegal activity and ask that I find that respondents erred in failing to restrict the union’s access to district resources.  They also ask that I direct respondents to formulate a policy that prohibits partisan political use of district Internet and email resources and either bar union access to district resources until the next contract is negotiated or require the union to submit all proposed material for respondents’ review prior to distribution. 

Respondents contend that the appeal should be dismissed because petitioners suffered no personal injury. They also assert that the appeal must be dismissed because district officials were unaware of the relevant union emails and newsletter until after they were sent and had not approved them, the union’s use of the email system did not create any additional expense for the district and the endorsement was not broadcast to the community.  Finally, respondents claim that the union was simply exercising a bargained-for benefit.  They assert that the past practice of the parties has not included district review of the union’s email to members and argue that the union’s use of the district email system can only be limited or changed through collective bargaining.  They also assert that the union has been permitted to use teacher’s mailboxes without review or limits under the same contract provision for more than 25 years.

Preliminarily, I find that petitioners have standing to bring this appeal.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Bermudez, 41 id. 355, Decision No. 14,712).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Polmanteer, 44 Ed Dept Rep 221, Decision No. 15,155; Appeal of Murphy, 39 id. 562, Decision No. 14,311). District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeal of Allard, 43 id. 167, Decision No. 14,957).  This includes the allegedly illegal use of district resources.

     While a board of education may provide informational material to the voters concerning a vote or election, the use of district resources to distribute materials designed to solicit favorable votes violates the constitutional prohibition against use of public funds to promote a partisan political position (Phillips v. Maurer, 67 NY2d 672; Appeal of Huber, et al., 41 Ed Dept Rep 240, Decision No. 14,676, petition to review decision dismissed January 7, 2003 [Sup. Ct., Albany Co., Special Term; Spargo, J.]; Appeal of Hoefer, 41 id. 203, Decision No. 14,664). Even indirect support, such as a school board giving a private organization access to its established channels of communication to espouse a partisan position has been deemed improper (Stern v. Kramarsky, 84 Misc.2d 447; Appeal of Doro, 40 Ed Dept Rep 281, Decision No. 14,480). In addition to lending indirect support to the private organization’s efforts to influence the vote, permitting such use of school facilities also lends an appearance of prohibited partisan activity by the school district, which should be avoided (Appeal of Hoefer, supra,  Appeal of Doro, supra ).

     I find that in the circumstances presented here, respondents improperly permitted the union to use district resources to advocate its position.  The union emails endorsed two candidates, denigrated other candidates and their alleged supporters and urged union members to carry the union’s views to the community.

     Respondents assert that the union’s use of email was undertaken pursuant to its contract and was consistent with the parties’ longstanding practice.  However, the parties’ collective bargaining agreement cannot authorize unconstitutional partisan use of district resources (see, Appeal of Tropia, 32 Ed Dept Rep 606, Decision No. 12,929). Respondents’ contention that they did not know of the emails in advance or authorize their distribution is unavailing.  A board of education must be vigilant to ensure that district resources are not used, either directly or indirectly, to disseminate partisan information and must be accountable for how its resources are being used (Appeal of Hoey, et al., 45 Ed Dept Rep 501, Decision No. 15,394; Appeal of Lawson, 38 id. 713, Decision No. 14,124). Accordingly, I direct respondents to review their policies on elections and the use of district resources to ensure that adequate safeguards are in place to guard against improper partisan political activity.

The post-election newsletter, on the other hand, did not constitute improper advocacy.  While it contained strong, potentially divisive language, it was not directed at a specific question before the voters and was directed to union members only.


It is ordered that respondents review the district’s policies in accordance with this decision to ensure that adequate safeguards are in place to guard against improper partisan political activity.