Appeal of THOMAS A. KOEHLER from actions of the Board of Education of the Fairport Central School District and William C. Cala, Superintendent, relating to the utilization of school district resources.

Decision No. 15,553

(March 30, 2007)

David A. Hoover, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner appeals actions of the Board of Education of the Fairport Central School District (“the board”) and its superintendent, William C. Cala, (collectively “respondents”) regarding the use of school district resources in connection with a bond referendum.  The appeal must be dismissed.

During the 2004-2005 school year, the board formed a   Facilities Planning Committee (“the Committee”) which recommended a $76.3 million capital improvement project (“the project”) for work at all of the district’s facilities.  The board accepted the final recommendations of the Committee at a board meeting held on August 17, 2005 and directed the preparation of a draft environmental impact statement.  On November 30, 2005, the board adopted the final environmental impact statement.  On December 21, 2005, the board scheduled a special district meeting to be held on February 14, 2006 for a vote on the project.  The proposition was rejected by voters on February 14, 2006 (Yes-3,731 and No-6,612).  This appeal ensued.  Petitioner’s initial request for interim relief was denied on January 3, 2006. 

Petitioner alleges that the superintendent, who has since retired, and the board illegally used district resources, including email, faculty, facilities and the district newspaper to improperly advocate and/or convey support for the Committee’s recommendations.  First, petitioner contends that at a board meeting on November 16, 2005 certain board members and the superintendent, during the board comment agenda item, expressed favoritism toward the Committee’s recommendations.

Petitioner also alleges that on November 29, 2005, the district’s athletic director sent an improper email to the district’s coaches urging them to attend the board meeting to be held on November 30, 2005 and speak in favor of the project.  He also alleges that on December 1, 2005, the athletic director sent another improper email to those who attended the November 30 board meeting and district coaches, thanking them for their attendance and asking them to attend the December 21, 2005 meeting at which the board would officially act on the plan.  Petitioner claims that these emails violate the district’s administrative policy regarding the use of computerized information resources and constitute a misuse of district resources to improperly advocate for a position in favor of the project. 

Petitioner further alleges that the superintendent asked the president of the Fairport Educators Association, the union representing the district’s teachers, to invite district teachers to speak favorably at the board meeting and as a result, a district teacher spoke in support of the project at the November 30 board meeting.

Additionally, the appendix of the Committee’s recommendations dated March 10, 2005, which was later incorporated into the final environmental impact statement adopted on November 30, 2006, contained presentation charts that petitioner alleges improperly advocated for the project.  Examples of some of the alleged improper slogans contained in those charts included:  “All of our kids, All of our future, Building for learning,” “Rebuilding the Future II, Facilities Planning for our children” and “I believe the community would support the option as educationally appropriate and fiscally sound.”

Petitioner also avers that the fall edition of the Fairport Education Commentator, the school newspaper, also contained improper statements advocating in favor of the project.  Specifically, the paper states that the goal of the facilities review process “was to provide a sound, long-term educational proposal.”  Petitioner alleges that this publication is a misuse of district funds to improperly advocate or persuade voter support for the project.

Petitioner requests that I admonish respondents for improperly using district resources to advocate for a favorable position and order respondent to cease using public resources for such purposes in the future.  Petitioner further requests that I direct respondents to review their policies to ensure strict compliance with State law and existing board policies and that I designate representatives to conduct an on-site visit to determine the extent of these activities and to monitor compliance with such requirements.

Respondents deny that their actions were improper and allege that petitioner has failed to state a legally sufficient basis for the relief requested.  Respondents also allege that petitioner failed to serve copies of several exhibits upon respondents, that certain claims should be dismissed as untimely and that the denial of petitioner’s motion for a stay renders the appeal moot.  Respondents further contend that petitioner’s request for the Commissioner to appoint a representative to monitor respondents’ actions must also be denied because an appeal pursuant to §310 of the Education Law does not provide for investigations.

In January 2006, petitioner sought permission to submit an additional petition with exhibits to provide additional evidence not available at the time the appeal was brought.  Specifically, petitioner alleges that at the December 21, 2005 board meeting, prior to their vote, each board member spoke about their decision.  Also, petitioner alleges that on December 23, 2005, respondent’s high school principal sent an email to a selected list of district voters encouraging them to vote.  Pursuant to §275.3(b) of the Commissioner’s regulations, I have accepted and considered the additional pleading.  Petitioner also submitted an additional request for interim relief, which was denied on January 5, 2006.

Respondents allege that petitioner failed to serve copies of Exhibit C of the petition and Exhibit B of the “additional petition” (videotapes of school board meetings held on November 16 and December 21, 2005) upon respondents.  Section 275.8(a) of the Commissioner’s regulations specifically states, "A copy of the petition, together with all petitioner’s affidavits, exhibits, and other supporting papers ... shall be personally served upon each named respondent....”  In petitioner’s verified reply, petitioner offers as an excuse that he lacked sufficient time to prepare duplicate copies of the videotapes.  The failure to serve the exhibits on respondents denied them a meaningful opportunity to respond to the contents contained therein and present a defense in this appeal (seeAppeal of Wells, 35 Ed Dept Rep 367, Decision No. 13,573).  Therefore, I have not considered the contents of such videotapes as part of this appeal.

Next, respondents contend that the appeal is untimely in whole or in part.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Petitioner commenced this proceeding by service on the board on December 16, 2005 and upon the superintendent on December 20, 2005.  To the extent that petitioner challenges respondents’ actions on November 16, 2005, this claim must be dismissed as untimely as against the superintendent because petitioner failed to serve the superintendent within 30 days of such action. 

Respondents also maintain that this petition should be dismissed as moot.  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).  On February 14, 2006, voters rejected the 2006 Facilities Project.  Therefore, to the extent that petitioner requests that I prevent the board (1) from adopting the final environmental impact statement, (2) from approving a resolution for the board to proceed with the project, (3) from approving a resolution for selecting a vote on the project or (4) from holding a vote on the project, these claims must be dismissed as moot. 

I must also reject petitioner’s request that I designate representatives to conduct an on-site visit to investigate these activities.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of W.T.B. and M.B., 44 Ed Dept Rep 152, Decision No. 15,129; Appeal of Qureshi, 43 id. 504, Decision No. 15,066; Appeal of Simmons, 43 id. 7, Decision No. 14,899).

Petitioner’s remaining contentions are also without merit.  In Phillips v Maurer (67 NY2d 672), the Court of Appeals held that a board of education may disseminate information “reasonably necessary” to educate and inform voters about an annual budget or propositions, but that a board of education may not “disseminate information, at taxpayers’ expense, patently designed to exhort the electorate to cast their ballots in support of a particular position advocated by the board.”  Petitioner contends that respondents illegally used district resources, including email, faculty, facilities and the district newspaper to improperly advocate and/or convey support for the project.

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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  I have examined petitioner’s exhibits, which consist of various materials, including emails from the athletic director to district coaches urging such coaches to speak in favor of the project at scheduled board meetings, charts contained in the Environmental Impact Statement which contain slogans for the project, and a copy of the fall edition of the Fairport news publication which provides information about this project, and I do not find that these materials constitute impermissible advocacy in favor of passage of the facilities proposition.

The record reveals that the emails from the athletic director, the discussions at the November 16 board meeting, the news publication and the Environmental Impact Statement were prepared and issued before an electoral vote for the facilities project was even scheduled.  In addition, it appears that the purpose of such discussions and materials was to persuade board approval of the project and not to exhort the electorate.

As for petitioner’s contention that the principal sent an improper email on December 23, 2005 to a selective list of district residents on the listserv, encouraging them to vote for the project, I find this claim to also be without merit.  Petitioner’s claim appears to be based on his unsubstantiated assertion that 99% of the district residents included on such list are district residents who have children currently enrolled in the school district, arguably making them more susceptible to voting in favor of the project. However, petitioner has failed to provide any evidence to substantiate this claim and in fact, admits that he has no access to the names on the list.  Additionally, respondents have indicated that any person with Internet access coming to Fairport’s website can submit an email address and will receive updates as a member of the listserv.  Since petitioner’s claim is based substantially on speculation and petitioner has presented insufficient concrete evidence to support it, this claim must also be dismissed.

THE APPEAL IS DISMISSED.

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