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Decision No. 15,507

Appeal of DIANE ECKEL from action of the Board of Education of the Oyster Bay-East Norwich Central School District regarding a school budget vote.

Decision No. 15,507

(December 22, 2006)

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Kevin G. McMorrow, Esq., of counsel

MILLS, Commissioner.--Petitioner, a district resident, challenges certain actions of the Board of Education of the Oyster Bay-East Norwich Central School District (“respondent”) with respect to a budget vote held on May 16, 2006.  The appeal must be dismissed.

At respondent’s meeting held on April 25, 2006, respondent’s superintendent stated that an automated dialing telephone system would be used to call parents of students in the district to remind them to vote at the May 16 budget vote.  At the same meeting, petitioner alleges that respondent provided certain materials regarding the budget and other matters that would be provided only at district schools, but would not be distributed to all residents.  The materials advised that a school concert and a bake sale would be held during the time of the budget vote on May 16, although an earlier school calendar, sent to all district residents, stated that the concert would be on May 17.  Petitioner further alleges that respondent mailed brochures containing budget information in an untimely manner.  This appeal ensued.

Petitioner contends that taken together, these alleged actions by respondent constitute improper advocacy in favor of the budget.  Petitioner claims that respondent provided information to parents of current students about the concert and bake sale because they are more inclined to  support the budget than other district residents.  Petitioner further contends that the school’s parking lot would be filled by parents attending the concert and bake sale, thereby turning away voters, particularly the elderly and disabled.

Respondent generally denies any wrongdoing, clarifies that certain publications were not produced with public funds, and presents a number of affirmative defenses. 

In her petition, petitioner requested a stay to prevent the concert from being changed to May 16, and a stay to prevent the use of an automated dialing telephone system from being used to remind parents of the budget vote.  Petitioner also requested that I order the concert to be held on May 17, as the calendar originally stated, and that I order the bake sale to be conducted on a different date.  Petitioner further requested that respondent be admonished and prohibited from such “discriminatory acts” in future votes, and that a second budget vote be held.

Petitioner’s stay request was denied in its entirety on May 5, 2006.  With respect to the automated telephone notification system, the district’s counsel and superintendent submitted affidavits attesting that the statement made on April 25 was made in error, and that such system would not be used to notify parents of the time, place, and date of the election, or for any other purpose in connection with the May 16 vote.  There is no indication in the record that respondent did not honor this pledge, and this appeal does not challenge the outcome of May 16 vote in any respect.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).  With respect to the relief sought by petitioner in her stay request, the stay has been denied and the requests are now moot.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  With respect to petitioner’s request that “respondent be admonished and prohibited from such discriminatory acts in future votes,” petitioner has not provided any proof that either the concert or the bake sale constitutes a violation of law.  Prior Commissioners’ decisions have made it clear that holding a fund raiser at the same time as an election does not constitute electioneering (Appeal of McBride, et al., 39 Ed Dept Rep 702, Decision No. 14,354; Appeal of Santicola, 36 id. 416, Decision No. 13,765).  The holding of a school concert on the night of a budget vote has also been held permissible (Appeal of Rampello, 37 Ed Dept Rep 153, Decision No. 13,830; Appeal of Sowinski, 34 id. 184, Decision No. 13,276).  These types of activities are permissible provided a district gives notice to all district residents in the same manner, and not just to those district residents that the board believes will be supportive of the budget, especially parents of students.  Petitioner has failed to establish that these activities were not brought to the attention of all district residents legally.

With respect to petitioner’s claim that “brochures containing budget information” were mailed late, the record fails to establish any violation by respondent.  Copies of the budget must be made available upon request to district residents during the 14 days immediately preceding the date of the annual meeting, as well as on the day of the vote (Education Law §1716).  There is no legal requirement that the actual text of the budget be published in a newspaper or otherwise.   Nor is there a legal requirement that a school district mail copies of its proposed budget to anyone (Appeal of Herloski, 43 Ed Dept Rep 348, Decision No. 15,014; Appeal of Chernish and DeRidder, 39 id. 204, Decision No. 14,215).  The law also requires that a school district mail a school budget notice to all qualified voters of the school district after the date of the budget hearing, but no later than six days prior to the annual meeting at which the budget vote will occur (Education Law §2022[2-a]).  Petitioner has neither alleged nor proven that respondent failed to comply with these requirements.