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Decision No. 15,678

* Subsequent History: Matter of Antaki v Mills; Supreme Court, Albany County; Judgment dismissed petition to review; May 30, 2008. *

Appeal of ALBERT M. ANTAKI and ERNEST P. MOSMAN, from actions of the Board of Education of the Pleasantville Union Free School District regarding a bond referendum.

Decision No. 15,678

(October 17, 2007)

Reisman, Rubeo & McClure, LLP, attorneys for petitioner, Christopher W. McClure

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, of counsel

MILLS, Commissioner.--Petitioners challenge the actions of the Board of Education of the Pleasantville Union Free School District (“respondent” or “board”) relating to a March 20, 2007 bond referendum.  The appeal must be dismissed.

Petitioners are residents of the Pleasantville Union Free School District (“district”).  On March 20, 2007, respondent presented district residents with a proposition to raise $37,250,000 through a tax levy for additions and renovations to respondent’s high school.  The proposed capital project passed by one vote, with 909 residents voting in favor of the referendum and 908 voting against it.  This appeal ensued.  Petitioners’ request for interim relief was denied on May 1, 2007.

Petitioners seek to set aside the referendum, alleging that respondent disseminated misleading information to district residents.  Specifically, petitioners allege that respondent distributed reports and publications containing misleading student population projections and misinformation regarding classroom calculations to support the need for the referendum.  Petitioners also contend that respondent improperly denied a district resident the right to vote and that respondent permitted laxity in its voting process on the date of the election.

Respondent contends that its actions with regard to the referendum were proper, that petitioners have failed to demonstrate any alleged misconduct on the part of the district and that all information given out concerning the referendum was appropriate.  Respondent also alleges that the appeal is untimely.

Initially, I must address several procedural issues.  Petitioners object to respondent’s submission of an answer dated May 9, 2007 on the grounds that respondent previously submitted a document entitled “Affidavit in Opposition to Request for Stay Order and in Support of Answer.”  Pursuant to §§275.3 and 276.1 of the Commissioner’s regulations, a respondent is permitted to submit both an affidavit in opposition to a request for a stay and an answer to the petition.  Therefore, I have considered both documents.

Respondent challenges the appeal on the grounds that it is untimely.  Specifically, respondent requests that the appeal be dismissed to the extent that petitioners challenge information presented in publications and/or at meetings and hearings that occurred more than 30 days prior to the commencement of this appeal.  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).  However, with respect to an appeal challenging the result of a school district election, the Commissioner has held that it would be unreasonable and detrimental to the efficient resolution of disputes to require that petitioner institute separate appeals with respect to acts comprising a series of events closely related to the election (see Appeal of Maliha, 41 Ed Dept Rep 367, Decision No. 14,716; Appeals of Schadtle and Wilcox, 38 id. 599, Decision No. 14,102).  In such circumstances, where a petitioner seeks to overturn the results of an election, I have declined to dismiss the appeal as untimely provided that the appeal was commenced within 30 days of the election (see Appeal of Maliha, 41 Ed Dept Rep 367, Decision No. 14,716; Appeals of Schadtle and Wilcox, 38 id. 599, Decision No. 14,102).  Petitioners’ appeal, which seeks to set aside the referendum, was commenced within 30 days of the March 20, 2007 vote.  Accordingly, I will not dismiss the appeal as untimely.

With respect to the merits, petitioners request that the results of the March 20 vote be invalidated because respondent conducted an improper campaign of misinformation designed to mislead resident voters into believing that it was necessary to create new classrooms and renovate respondent’s high school.  Specifically, petitioners allege that from June 2006 through March 20, 2007, respondent disseminated information to resident voters designed to convince them that respondent was required to accept students from the Pocantico Hills Central School District (“Pocantico”), a K-8 school, into its high school, thereby causing a dramatic projected increase in enrollment at respondent’s high school over the next few years and precipitating the need for additional classrooms and renovations at the high school.

In 2006, respondent commissioned a committee to study space needs at the high school.  On June 19, 2006, the committee issued a report, entitled the “Pleasantville High School Facilities 2006 Citizens Committee Report.”  The report indicated that new classrooms were needed at the high school for several reasons, including an anticipated increase in enrollment.  On or about September 2006, respondent disseminated another report, entitled the “Administrative High School Facility Report,” advocating for the construction of new classrooms due to increased future enrollment.  Petitioners allege that students from Pocantico were included in the calculations for these reports, thereby creating the false impression that respondent was required to accept Pocantico students into respondent’s high school.  Petitioners further allege that in March 2007, respondent published a false statement in a booklet entitled “Bond Referendum Issue.”  In the frequently asked questions section of the booklet, respondent printed the following question and answer:

Would the high school still need more space if it stopped taking tuition students from Pocantico?  Pleasantville has a binding agreement governed by the State to accept Pocantico students who choose to attend the High School.

Petitioners allege that these materials misled district residents by suggesting that respondent’s instruction contracts with Pocantico are ongoing and cannot be terminated.

Petitioners further allege that if respondent notified district residents of respondent’s right to decline to renew its instruction contracts with Pocantico, the referendum would have been defeated.  In support of this position, petitioners submit affidavits from two residents who allege that they would have voted “no” to the bond referendum if they had additional information.  One affidavit states, in pertinent part:

In light of the information that the bond could make Pleasantville the most indebted school in the state, that the high school has supported many more students in the past, I would have voted no. . . .  It also seemed that the agreement to take the Pocantico students was a permanent situation rather than renewed every year.

The other affidavit states, in pertinent part:

It was never brought out in the information that the number of students attending the same facility in the 1960’s were [sic] between 750 to 900 students which is approximately 300 more than attend today. Regarding Pocantico students, the pamphlet suggests that we have a binding agreement with New York State to take in 50 to 55 more students, the fact is that agreement is a yearly agreement which does not have to be renewed.  Also, the pamphlets do not suggest that the Pleasantville School District will be the highest taxed and owe the most money out of any school district of its size in New York State. . . .  Had I had the additional information, I would have changed my vote on this Bond Issue from yes to no.

To invalidate the results of a school district election or vote, petitioners must establish not only that irregularities occurred, but also that the irregularities actually affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Santicola, 36 Ed Dept Rep 416, Decision No. 13,765), were so pervasive that they vitiated the electoral process (Appeal of Roberts, 33 Ed Dept Rep 601, Decision No. 13,162; Matter of Gilbert, 20 id. 174, Decision No. 10,366), or demonstrate 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, Capobianco v. Ambach and Bd. of Educ., Glen Cove City School Dist., 112 AD2d 640).  Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of a school election become so pervasive that they vitiate the fundamental fairness of the election (Appeal of Goldman, 35 Ed Dept Rep 126, Decision No. 13,487; Appeal of Roberts, 33 id. 601, Decision No. 13,162).

Education Law §§2040 and 2045 and §174.4 of the Commissioner’s regulations authorize a board of education to designate one or more school districts for the purpose of contracting for the education of some or all of its resident pupils.  In a letter dated May 15, 1992, the Commissioner approved Pocantico’s request to contract for the education of resident high school pupils in neighboring school districts.  On March 15, 1993, Pocantico’s Board of Education adopted a resolution designating three high schools, including respondent’s high school, to educate their students.  As a result of such designation, respondent has entered into one-year instruction contracts with Pocantico for the education of their secondary students since the 1992-1993 school year.

Education Law §2045(1) states “[d]istricts shall not refuse to receive nonresident academic pupils for instruction without valid and sufficient reasons therefore.”  In an affidavit, the superintendent of schools indicated that the district did not have a valid and sufficient reason to refuse to accept Pocantico students and, therefore, their enrollment was included in the projections for the additions and renovations, which were undertaken for a variety of reasons.

The record reveals that enrollment was only one of several factors that precipitated respondent’s decision to undertake the project at respondent’s high school.  Both the committee report and the superintendent’s presentation for the public hearing held on December 11, 2006 reveal that the project was needed to address not only a projected increase in enrollment, but infrastructure needs; New York State mandates (the all-Regents high school program and extended and multi-level courses); expanded State and federal IDEA mandates (growth in special education program and services, ADA requirements, extended pupil personnel services and English Language Learners); changes in technology; the increasingly competitive college application process; community expectations and to enhance the high school’s academic program.

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).  Petitioners have failed to provide evidence that Pocantico has not renewed the designation of respondent for the education of their students and/or that respondent is not required to accept such students.

Furthermore, the affidavits provided by petitioners do not establish that “but for” the statements suggesting that the district’s obligation to Pocantico students was statutory rather than contractual, the referendum would have been defeated.  The affidavits do not indicate that this information alone, or a clarification as to the nature of the obligation, would have led these two individuals to vote differently.

To the extent that respondent disseminated information indicating that it was bound by agreement, rather than by statute, to accept Pocantico students, I find it to be harmless error.  Therefore, upon a review of the record, I find that petitioners have failed to demonstrate that the information presented by the district was false or misleading.

Also, respondent was under no obligation to provide information with respect to the additional information regarding the district’s indebtedness relative to other school districts and the district’s attendance during the 1960s.

Petitioners also aver that the vote was flawed because at least one citizen who would have voted “no” to the referendum was denied the right to vote.  Petitioners submit the sworn affidavit of a district resident who stated that she appeared on March 20, 2007 to vote against the bond referendum, signed the voting ledgers at the polls, but left the facility without voting.  When she returned to the polls, respondent’s district clerk allegedly directed the election inspector to prevent her from voting.  Petitioners contend that if the affiant were permitted to vote, she would have voted “no” and the bond referendum would not have passed.

In response to this allegation, respondent submits an affidavit from the district clerk, stating that it was appropriate procedure for the district to refuse to allow the resident to vote when she presented herself to the polls for a second time because there was no way to verify the fact that she had not previously voted.

Since there was no way to verify that the resident had not voted in the election, I find that it was appropriate to disallow the affiant from voting when she presented herself to vote a second time.  Petitioners also failed to demonstrate that the district did not follow proper voting procedures when refusing to allow the district voter the right to vote.  In the absence of such proof, the vote will not be set aside.

Petitioners also submit the affidavits of three residents who voted on the bond referendum alleging that respondent failed to confirm that individuals who presented themselves at the polls were district residents or who they claimed to be.  The district clerk stated, in his affidavit, that the district does not have a system of personal registration of voters but, rather, has what is known as “poll registration.”  Thus, an individual who presents himself or herself personally at the polling place is permitted to vote unless challenged.  Pursuant to Education Law §2014, respondent is not required to adopt a system of personal registration.  In districts without personal registration, election officials may, but are not required to, request proof of residency (Education Law §2018-c).  Therefore, respondent was not required to request proof of citizenship from each eligible voter.  Moreover, petitioners do not allege that any specific individual who voted at the March 20, 2007 referendum was ineligible to vote.

In light of the foregoing, I find that petitioners mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul the election results (Appeal of Crowley, et al., 39 Ed Dept Rep 665, Decision No. 14,345; Appeal of Krantz, 37 id. 257, Decision No. 13,853).  Therefore, the appeal must be dismissed.

In light of this disposition, I need not address petitioners’ remaining contentions.