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Decision No. 16,089

Appeal of ROBERT HERLOSKI from action of the Board of Education of the Webster Central School District and Superintendent Adele Bovard regarding a bond referendum.

Decision No. 16,089

(July 10, 2010)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Dennis T. Barrett, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals various actions of the Board of Education of the Webster Central School District (“board”) and Superintendent Adele Bovard (collectively “respondents”) relating to a bond referendum. The appeal must be dismissed.

On January 19, 2010, voters in the Webster Central School District approved a capital project proposition.  Petitioner alleges that respondents and others distributed emails, newsletters and mailings which improperly used public funds to exhort a “yes” vote on the referendum.  Petitioner also contends that the board fraudulently failed to disclose the bond interest cost of the referendum to voters and did not include interest costs in the wording of the referendum, thereby authorizing the collection of interest in violation of the Local Finance Law.  Finally, petitioner contends that respondents falsely and fraudulently stated that the referendum would not result in new taxes.  Petitioner maintains that respondents’ alleged misconduct was so pervasive that it vitiated the fundamental fairness of the electoral process and demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.

Petitioner requests that I nullify the bond referendum or, in the alternative, that I direct the board to insure that no more than $6,038,000 be levied for both principal and interest of the bond.  Petitioner also requests that I find that respondents allowed district resources to be used to exhort a “yes” vote on the referendum and that they disseminated statements that were not objective or factual and that I direct respondents to refrain from doing so in the future.  In addition, petitioner asks that I find that respondents failed to disclose the interest cost of the referendum from voters and order them to provide such information and refrain from providing inaccurate information in the future.  Finally, petitioner requests that I direct respondents to establish policies and procedures to address these issues in the future.

Respondents allege that the appeal is untimely and maintain that petitioner has failed to provide evidence that the outcome of the vote was affected by the alleged improper conduct.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  In this case, the referendum authorizing the special district meeting and the language to be submitted to voters was adopted at the board’s November 19, 2009 meeting.  Petitioner commenced this appeal on February 9, 2010.  With respect to appeals involving school district elections, I have held that it would be unreasonable and detrimental to the efficient resolution of a petitioner’s claims to require that petitioner institute separate appeals with respect to acts comprising a series of events closely related to the election (Appeals of Schadtle and Wilcox, 38 Ed Dept Rep 599, Decision No. 14,102; Appeal of Rampello, 37 id. 153, Decision No. 13,830).  In such circumstances, even though the appeal involves acts occuring more that 30 days from the date the appeal is commenced, I have declined to dismiss the appeal as untimely provided the appeal is commenced within 30 days of the election.  Petitioner’s appeal was commenced within 30 days of the January 10, 2010 vote.  Accordingly, I decline to dismiss it as untimely.

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Petitioner has failed to meet his burden in this case.

To invalidate the results of a school district election, petitioner must establish not only that an irregularity occurred, but that the irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Goldin, et al., 40 Ed Dept Rep 639, Decision No. 14,573; Appeal of Lawson, 38 id. 713, Decision No. 14,124; Appeal of Chechek, 37 id. 624, Decision No. 13,943), 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, affdsubnom, Capobianco v. Ambach, et al., 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).

Petitioner has failed to demonstrate that respondents did not factually and adequately apprise voters about the terms of the bond referendum.  Where a vote is on a capital project and the financing thereof, to demonstrate that the outcome has been affected, the proof must contain affidavits or statements from individuals who voted in favor of the referendum that their vote would have been otherwise but for the alleged misconduct (Appeal of Krantz, 38 Ed Dept Rep 485, Decision No. 14,077).  Petitioner has failed to submit a single affidavit from a district voter stating that the alleged inaccurate or incorrect communications affected their vote.  Moreover, the proposition was approved by a 584 vote margin.

In addition, the superintendent avers that she and district staff made numerous presentations describing the project and its costs to voters.  Some of these presentations were televised on the local access channel and the videotape was rerun a number of times to ensure voters had access to the information.  In addition, the district provided press releases, newsletters, interviews and district employees met with community groups.  Petitioner makes nothing but unsubstantiated allegations that these presentations were factually inaccurate or incorrect.

Petitioner has similarly failed to establish any grounds for relief on his claim that district employees used school district resources to exhort a “yes” vote on the bond referendum.  It is well settled that while a board of education may distribute factual information regarding a vote or an election, the use of district resources to distribute materials designed to solicit favorable votes violates the constitutional prohibition against using public funds to promote a partisan position (Phillips v. Maurer, et al., 67 NY2d 672 [1986]; Appeal of Lawson, 36 Ed Dept Rep 450, Decision No. 13,774; Appeal of Saba, 36 id. 233, Decision No. 13,710).  Even indirect support, such as a school board giving a PTA access to its established channel of communication to parents to espouse a partisan position that the board itself was prohibited from doing directly, has been deemed improper (Stern, et al. v. Kramarsky, et al., 84 Misc. 2d 447 [1975]; Appeal of Lawson, 36 Ed Dept Rep 450, Decision No. 13,774; Appeal of Saba, 36 id. 233, Decision No. 13,710).

The record reflects that members of the Webster Schroeder High School Parent Teachers’ Student Association (“PTSA”) distributed emails to a limited number of voters asking them to vote “yes” on the bond referendum.  The superintendent avers that the emails were written and sent by the co-chairs of the PTSA without consultation with any district employee or officer and would not have been authorized had the district known their content.  The emails were sent by PTSA members and officers using their own home computers through a mailing list maintained by the PTSA on the district website.  When petitioner expressed concern over the first of these emails, the superintendent immediately ordered it retracted and initiated steps to ensure that such activity would not recur.  Moreover, the PTSA officers who authored the emails averred that they acted without the knowledge or involvement of the district officials.  Given that there is no evidence that respondents knew about the emails in advance or sanctioned their distribution or any evidence that the emails were distributed at school district expense, I find that petitioner has not proven that respondents engaged in any partisan activities sufficient to overturn the vote (Appeal of Van Allen, 38 Ed Dept Rep 701, Decision No. 14,122).

Petitioner also alleges that district communications and the referendum were fraudulent and inaccurate because they failed to disclose bond interest.  He asserts that the notice of the school district meeting at which the bond vote occurs and the bond or capital notice resolution must contain a separate object or purpose designated as interest pursuant to Local Finance Law §41.10.  A reference to interest payments in the notice of the district meeting and bond resolution is not required by statute.  Pursuant to the Local Finance Law, interest is not an object or a purpose which can be financed (unless it is estimated capitalized interest during construction which was not a part of the district’s project), and thus would not be included in the list of items to be financed in the bond resolution.  Where a tax is to be collected in installments and bonds or capital notes are to be issued, the Local Finance Law §41.10 specifically states that “to finance a specific object or purpose” the notice of the meeting must state the maximum cost of each such specific object or purpose.  Interest costs are not a specific object or purpose to be financed.  In any case, I note that bond interest rates are determined based on market conditions at the time the bonds are issued, so at best a bond resolution could contain an estimate of interest based on conditions 45 days before the vote, and there is no statutory requirement that such an estimate be included in the notice and bond resolution.  There is also no requirement that the bond interest be expressed in district communications.

Petitioner also contends that the district’s statement that the referendum would result in no new taxes was fraudulent.  The superintendent avers that the district’s building aid ratio is 80% (or slightly above) of aidable project costs.  The appropriation from capital reserve of $1.9 million dollars is 23.9% of the total project cost of $7,938,000.  Therefore, the project is covered entirely by the capital reserve appropriation and aid payments on total aidable costs over the anticipated 15 year life of the bond.  In addition, she avers that approximately $90,000 annual savings in operations and maintenance provide a substantial cushion to insure that there would be no additional school property tax caused by the project.  The superintendent states that it is because of these facts that she was able to assure voters that the project would not create new taxes.  Moreover, petitioner does not present any evidence that that allegedly fraudulent and inaccurate information provided with respect to bond interest or taxes affected the outcome of the vote or vitiated the fundamental fairness of the electoral process and demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.  Consequently, this does not constitute a basis on which to overturn the results of the vote.

In light of this disposition I need not address the parties’ remaining contentions.