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Decision No. 16,160

Appeal of MARK V. RIZZI from action of the Board of Education of the Highland Central School District regarding a budget vote.

Decision No. 16,160

(October 8, 2010)

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

STEINER, Commissioner.--Petitioner appeals actions of the Board of Education of the Highland Central School District (“respondent”) regarding the conduct of the 2010-2011 school budget vote.  The appeal must be dismissed.

On May 18, 2010, the district’s voters approved the proposed budget by an 88-vote margin, 760 to 672 votes.  Petitioner claims that at the polling place during the vote, respondent improperly disseminated a fact sheet that contained false, manipulative and threatening language that could have resulted in the extra 88 affirmative votes.  He contends that the fact sheet falsely stated an amount for a contingency budget and contained misleading information about such a budget even though respondent had never discussed or voted on the matter.  Petitioner alleges that the fact sheet failed to distinguish between an “allowable” versus a “possible actual” contingency budget.  He also objects to a particular statement in the portion of the fact sheet relating to a school bus proposition.  He requests that I investigate his complaint, annul the election and order respondent to conduct a new vote.

Respondent maintains that the appeal must be dismissed because petitioner fails to establish the facts upon which he seeks relief or demonstrate a clear legal right to the relief requested.  Respondent denies petitioner’s allegations, asserts that it did not mislead or misinform voters and asserts that it had an affirmative obligation under the Education Law to provide information about a contingency budget.  Respondent contends that the fact sheet was factual, objective and accurate, and was made available upon request to those voters who had questions.  Finally, respondent asserts that petitioner failed to establish that the conduct complained of affected the outcome of the election.

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).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Respondent was required by Education Law §2022(2-a)(a) to include an estimate of the amount of a contingency budget in the budget notice provided to voters.  Therefore, respondent’s inclusion of the estimated contingency budget amount in a fact sheet made available to voters at the polls was not, in and of itself, misleading.  Petitioner argues, however, that respondent’s failure to distinguish on the fact sheet between the actual and estimated contingency budget and its representation that the estimate was “state-calculated” was misleading.

I find petitioner’s arguments unavailing.  Based on the record before me, the fact sheet clearly distinguishes between the amount of the proposed and contingency budget, the estimated tax rate increase for both, and the increase per $1,000 assessed value for both.  Moreover, according to the superintendent, the substance of the information regarding the budget had previously been presented publicly at board meetings or through school newsletters.  In particular, the superintendent avers that information about the proposed contingency budget had been distributed to all district residents in the budget notice the day following the public hearing on the budget.  Accordingly, the fact sheet appears to be merely a condensed reiteration of previously supplied information provided as a convenience at the polling sites.  However, while Education Law §2022(2-a)(a) requires respondent to include an estimate of the amount of a contingency budget in the budget notice provided to voters according to a state-prescribed formula (see Education Law §2023), that estimate is not actually calculated by the state.  Thus, while I do not find any evidence that respondent misled the voters, respondent should refrain in the future from characterizing its estimate as “state-calculated.”

Furthermore, respondent’s budget passed by a margin of 88 votes.  Petitioner provides not a single affidavit from any voter who alleges that he or she would have voted differently but for the fact sheet and information contained therein, claiming it is unreasonable and impossible for him to do so.  Nonetheless, petitioner has the burden to prove that individuals who voted in favor of the budget would have voted otherwise but for the alleged misconduct.  Given the 88-vote margin of approval and the lack of evidence, petitioner has failed to establish that any alleged misstatement or irregularity affected the outcome of the vote.  Mere speculation as to the effect of alleged irregularities is insufficient to annul election results (Appeal of Gorman, 44 Ed Dept Rep 435, Decision No. 15,222).  Accordingly, there is no basis for overturning the results of the budget vote.

Although petitioner objects to a statement in the fact sheet pertaining to the district’s bus proposition, he provides no information about the outcome of the bus proposition vote and fails to demonstrate that it had any impact on the budget vote.  The only other relief requested by petitioner is for an investigation of the matters set forth in the petition.  However, it is well settled that an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).

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