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Decision No. 16,327

Appeal of JASON C. TILLETT from action of the Board of Education of the Penfield Central School District and Superintendent John D. Carlevatti regarding a budget vote and election.

Decision No. 16,327

(February 9, 2012)

Harter, Secrest & Emery LLP, attorneys for respondents, Ronald J. Mendrick, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals actions of the Board of Education of the Penfield Central School District (“board”) and Superintendent John D. Carlevatti (collectively “respondents”) related to the May 17, 2011 annual district meeting and election.  The appeal must be dismissed.

The day before the May 17, 2011 vote and election, 16 district-owned signs were placed along various roads and intersections in the district: six signs were placed along roads bordering district schools and ten were placed at intersections of major roads, one of which was on the property of the district administration building.  The signs stated “VOTE MAY 17 TUESDAY PENFIELD SR. HIGH 6AM-9PM”.

Petitioner contends that the signs were placed predominately at schools and workplaces of district employees, were placed there less than 45 days before the vote in violation of Education Law §2004, and that such sign placement constitutes improper partisan activity.  He specifically objects to the signs placed at the district’s administrative offices and middle school, and submits 23 affidavits from district residents who assert that they perceived the sign placements to be partisan activity.  Petitioner seeks a determination that such sign placement creates a perception of impermissible partisanship and requests that I direct respondents to refrain from such activity in the future.  He also requests that I resolve a perceived conflict between compliance with the publication requirements of Education Law §2004 and prior Commissioner’s decisions concerning challenges to sign placements.

Respondents contend that the appeal must be dismissed for failure to state a claim upon which relief may be granted and deny engaging in partisan activity.  The board asserts that it complied with the publication requirements of Education Law §2004 and therefore was not obligated to provide notice of the vote in public places, but in any event, the signs were merely informative, did not advocate a position, and were placed in locations designated to inform the greatest number of qualified voters.  Respondents contend that petitioner has failed to establish not only that any improper conduct occurred, but also that any alleged impropriety actually affected the outcome of the election.  Finally, respondents assert that the appeal must be dismissed as to the superintendent for lack of service.

I must first address some procedural issues.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  In their answer, verified by the superintendent, respondents assert that petitioner served the petition only upon the district clerk, who was authorized to accept service on the board’s behalf, but failed to serve the notice of petition upon the superintendent.

However, the petition submitted to my Office of Counsel includes a notarized affidavit of service of the notice of petition and petition upon the superintendent, with his physical description, dated the same day as the affidavit of service upon the district clerk.  Respondents submit no evidence to refute that affidavit.  I find that respondents’ mere statement in the answer denying receipt of service is insufficient to refute the detailed sworn affidavit of service.  Accordingly, based on this record, I find that the superintendent was properly served (cf. Application of Kelty, 49 Ed Dept Rep 12, Decision No. 15,946).

To the extent petitioner seeks an advisory opinion and declaratory relief, the appeal must be dismissed for failure to state a claim upon which relief may be granted.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

To the extent petitioner seeks an order directing respondents to refrain from activities in this annual district meeting and election that can be perceived as partisan, the appeal must 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). 

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Education Law §2004(1) requires school districts to publish notice of the time and place of the annual meeting four times within the seven weeks preceding the meeting.  The first publication must be at least 45 days before the meeting in two newspapers, if there are two, or in one newspaper, if there is one, having general circulation within the district.  Section 2004(1) also requires that if no newspaper has general circulation, then the notice “shall be posted in at least twenty of the most public places in said district forty-five days before the time of such meeting.”  Nothing in the law, however, prohibits the posting of signs in public places in addition to newspaper publication.

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).

Respondents assert that they complied with the publication requirements of Education Law §2004(1).  Accordingly, it was not required to post signs in public places (Appeal of Bartosik, 37 Ed Dept Rep 541, Decision No. 13,922).  Respondents admit, however, that they posted signs “voluntarily in order to provide notice of the date, time, and location of the annual meeting and election.  The signs do not advocate a particular position, but inform qualified voters of the annual meeting and election in order to enable their participation.”

While petitioner correctly asserts that, as a general matter, a board of education must avoid even the appearance of impermissible partisan activity with respect to the conduct of an election (cf. Appeal of McBride, et al., 39 Ed Dept Rep 703, Decision No. 14,354), I find that no such appearance was created in this case.  Rather, I agree with respondents that the signs merely encouraged district residents to vote and therefore were informational and did not advocate a partisan position (seeAppeal of Carroll, Emerson and Murphy, 42 Ed Dept Rep 326, Decision No. 14,871).  The signs were located in public places and the fact that some of those places were district property does not transform a neutral sign into a partisan one. 

I note that petitioner submits several affidavits from district residents, which appear to contain identical statements that they perceived information conveyed in a letter dated March 1, 2011 from the superintendent to be a district “plan for notification-sign placement and timing” (“plan”), and that they perceived the plan as partisan activity.  However, the record contains a copy of the March 1, 2001 letter, which merely lists the 10 intersections (along with mentioning the six schools) at which signs would be placed approximately 24 hours prior to the vote, and does not describe the signs’ contents.  I also note that the majority of the affidavits were signed prior to May 16, 2011 – the date on which the signs were actually posted.  Accordingly, based on this record, I find that petitioner has failed to carry his burden of establishing that respondents improperly advocated or created a perception of a partisan position through the signs’ content or placement.

Finally, to the extent petitioner has expressed confusion about the requirements of Education Law §2004, this decision reiterates §2004’s publication and notice requirements.

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