Decision No. 18,210
Appeal of SHARYE SKINNER from action of the Board of Education of the Cazenovia Central School District regarding a bond referendum.
Decision No. 18,210
(November 1, 2022)
Ferrara Fiorenza, P.C., attorneys for respondent, Lindsay A.G. Plantholt, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals various actions of the Board of Education of the Cazenovia Central School District (“respondent” or the “board”) relating to a bond referendum. The appeal must be dismissed.
On December 20, 2021, respondent adopted a resolution approving a $10.7 million capital improvement bond proposal, primarily for the construction of two artificial turf athletic fields. The board also adopted a resolution, pursuant to the State Environmental Quality Review Act (“SEQRA”), concluding that the proposed action would not result in any significant adverse environmental impact. The referendum was approved on March 30, 2022 by a vote of 1189 to 1102. This appeal ensued. Petitioner’s request for interim relief was denied on May 5, 2022.
Petitioner alleges that respondent engaged in “illegal advocacy… [that] violated the fundamental fairness” of the bond vote. She further asserts that respondent withheld documents that should have been provided to her in response to a Freedom of Information Law (“FOIL”) request. Petitioner requests that I conduct an in camera review of certain documents and nullify the results of the referendum.
Respondent denies petitioner’s allegations of wrongdoing and maintains that petitioner has failed to provide evidence that the outcome of the vote was affected by the alleged improper conduct. Respondent further argues that petitioner has failed to exhaust her administrative remedies and that the Commissioner lacks authority to make determinations related to her FOIL and SEQRA claims.
I must first address two related procedural issues. Respondent argues that petitioner’s reply and memorandum of law should be rejected because they improperly bolster claims already made in the petition and/or raise new claims. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
Additionally, a memorandum of law should consist of arguments of law (8 NYCRR 276.4). It may not be used to add belated assertions or exhibits not included in the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799). Accordingly, I have only considered the legal authorities and arguments thereto presented in petitioner’s memorandum of law.
Turning to the merits, a petitioner seeking to invalidate the results of a school district election must either: (1) establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or (2) demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (see Matter of Boyes v Allen, 32 AD2d 990, 991 [3d Dept 1969], affd 26 NY2d 709 ; Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Matter of Levine, 24 id. 172, Decision No. 11,356, affd sub nom. Capobianco v Ambach, 112 AD2d 640 [3d Dept 1985]). Implicit in these decisions is a recognition that it is a rare case where errors in the conduct of an election are so pervasive as to vitiate the fundamental fairness of the election (see Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905; Appeal of Thomas, 47 id. 442, Decision No. 15,748).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
Initially, petitioner alleges that respondent’s environmental review of the proposal was flawed because respondent failed to conduct studies by impartial experts, hold public hearings, or investigate “concerns” raised by an independent group. As a result, she argues, the public received misleading information about the project’s environmental impact.
Petitioner has not presented sufficient evidence that respondent’s statements regarding the project’s environmental impact were factually inaccurate. While petitioner submits a list of claimed inaccuracies submitted by an unnamed community member, respondent, by contrast, submits an affidavit from its school business official. In this affidavit, the school business official avers that “[t]he SEQR resolution and FEAF [Full Environmental Assessment Form] were properly prepared and the District followed all applicable procedures required under the law ….” I find that the school business official’s sworn allegations are more probative than the unsworn statement submitted by petitioner. As such, petitioner has failed to meet her burden of proving this claim.
Petitioner next asserts that respondent presented misleading and inaccurate information at public information sessions and in district mailings. In particular, petitioner alleges that respondent made false claims regarding the need for new fields, the general safety and lifespan of artificial turf fields, and their replacement costs, and the possibility that the district would seek lighting upgrades to the fields in the future. Petitioner additionally alleges that respondent made these false claims to encourage the public to support the bond proposal.
A board of education may use public resources to present objective, factual information to the voters concerning a vote or election (Matter of Phillips v Maurer, 67 NY2d 672, 673-674 ; see Education Law §§ 1716, 2022; Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Caswell, 48 id. 472, Decision No. 15,920). However, a board of education may not use district resources to distribute materials “designed to exhort the electorate to cast their ballots in support of a particular position advocated by the board” (Matter of Phillips, 67 NY2d at 674 [citing Education Law § 1709 (33)]; see Stern v. Kramarsky, 84 Misc 2d 447, 452 [Sup Ct, New York County 1975] [“No [public entity] may misuse … funds for promoting its own opinions, whims or beliefs, irrespective of the high ideals or worthy cause it espouses, promotes or promulgates”]; Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of Caswell, 48 id. 472, Decision No. 15,920).
Petitioner argues that there is information—available on the internet and “through the industry”—that refutes the information provided by respondent with respect to the safety and lifespan of artificial turf fields. These sweeping assertions alone do not demonstrate that respondent’s statements about these matters were inaccurate or designed to exhort the electorate to vote for the project.
Petitioner’s assertion that respondent intentionally concealed the possibility that it might someday seek lighting upgrades is similarly unavailing. Petitioner submits no evidence to show that respondent’s website indicated, at one time, that “[l]ighting and sound upgrades are not being considered for the … project”—a contention respondent denies. Moreover, a districtwide flyer concerning the project specifically mentioned this possibility of lighting upgrades. The flyer stated that while lights were not being considered for the current phase of the project, “site preparations that would preserve the ability to add them at a later time would be factored into the design.”
Petitioner also argues that an email sent by respondent’s superintendent to district residents on March 25, 2022 contained inaccurate information about the need for new fields. Petitioner objects to the following passage: “Why are we proposing this? Because our fields at the high school and middle school are no longer adequate to meet the needs of state-mandated physical education classes ….” Petitioner argues that this language “led an unknown number of selected recipients to believe the Superintendent was advocating” for the bond’s passage in order to meet the State’s physical education (“PE”) requirements. Petitioner submits an affidavit from two district residents, who opine that new fields are unnecessary to meet the PE requirements.
Respondent’s reference to “state-mandated [PE] classes” is accurate insofar as State law requires instruction in physical education “as the regents shall determine” (Education Law § 803; see 8 NYCRR Part 135). However, as petitioner suggests, the superintendent’s statement could also be interpreted to suggest that the district cannot comply with existing law until it upgrades its existing fields. While petitioner has demonstrated that two district voters formed the latter interpretation, she has not proven that a sufficient number of district voters were similarly exhorted and changed their votes accordingly (see Appeal of Romano, 61 Ed Dept Rep, Decision No. 18,076 [upholding similar statements]). I nevertheless remind respondent to ensure that budget-related communications are strictly objective and factual to reduce the likelihood of confusion or criticism (see e.g. Appeal of Herloski, 57 Ed Dept Rep, Decision No. 17,361; Appeal of Berg, 53 id., Decision No. 16,616; Appeal of Brower, 33 id. 368, Decision No. 13,081).
Petitioner also alleges that the superintendent’s March 25 email was only sent to residents with students in the district, thereby targeting a limited class of voters (see Appeals of Schadtle and Wilcox, 38 Ed Dept Rep 599, Decision No. 14,102; Appeal of Sowinski, 34 id. 184, Decision No. 13,276). As proof, petitioner submits an affidavit from a district resident who avers that she did not receive the email. This resident, however, does not indicate whether she is the parent or guardian of a student in the district. Respondent denies petitioner’s allegation that the communication was targeted to certain voters. Therefore, petitioner has not met her burden of proving that respondent engaged in such targeted advocacy.
Petitioner also alleges that respondent impermissibly coordinated with an outside organization, the Cazenovia Community Foundation, Inc. (“CCF”), to advocate for the proposal’s approval. Petitioner presents no evidence to support this allegation, which respondent denies. Respondent also submits an affidavit from its superintendent in which he avers that the CCF’s promotional activities “were funded and conducted solely by the CCF,” that “[t]he District did not fund any portion of the CCF’s promotional activities,” and that “[t]he District did not organize, direct, or conduct any portion of the CCF’s promotional activities.” Accordingly, I find no merit to petitioner’s allegation that respondent inappropriately coordinated with the CCF to advocate for the bond’s passage.
Petitioner has, however, sufficiently demonstrated two instances of improper advocacy. First, petitioner submits an affidavit from a member of the League of Women Voters (“LWV”) in which the member avers that, after a February 2, 2022 board meeting, the board president asked her to “get the [LWV] to issue a public statement that the [LWV] was not opposed” to the bond proposal. Respondent denies petitioner’s claim but provides no affidavits or evidence in response thereto. Given the context, it appears that the board president communicated with the LWV member in his official capacity (compare Appeal of Munoz-Feliciano, 54 Ed Dept Rep, Decision No. 16,773). As such, his solicitation of support from the LWV constituted improper advocacy. The indirect nature of the conduct is no defense (see Appeal of Lawlor, 36 id. 450, Decision No. 13,774; Appeal of Saba, 36 Ed Dept Rep 233, Decision No. 13,710).
Second, the record supports a finding that respondent utilized district resources to produce and disseminate a video that included district students and staff to advocate for the bond’s passage. In an affidavit, a district resident who viewed the video at a district-sponsored event avers that it depicted various groups of student athletes repeating phrases such as “if you build it, we will play,” and “if you build it, scouts will come.” Respondent does not directly respond to, or deny, these contentions. Thus, the record supports a finding that respondent used district resources to produce and disseminate a video that was filmed during school time; contains unprovable, sensational claims; and features district staff and students speaking in support of the proposal’s passage. I admonish respondent to refrain from such advocacy in the future.
Notwithstanding these violations, petitioner has failed to carry her burden of proving that such conduct affected the outcome of the referendum (see Appeal of Nahas, 55 Ed Dept Rep, Decision No. 16,816). It is well settled that mere speculation as to the existence of irregularities or the effect of irregularities provides an insufficient basis on which to annul election results (Appeal of Holliday, 60 Ed Dept Rep, Decision No. 17,947; Appeal of Dodson, et al., 54 id., Decision No. 16,764). To demonstrate that the outcome of a vote on a capital project and financing has been affected, the proof must contain affidavits or statements from individuals stating that they would not have voted in favor of the referendum if not for the alleged misconduct (Appeal of Herloski, 50 Ed Dept Rep, Decision No. 16,089; Appeal of Krantz, 38 id. 485, Decision No. 14,077).
As indicated above, while the proposition at issue in this appeal passed by a margin of 87 votes, petitioner did not submit a single affidavit from a district voter stating that the alleged irregularities affected his or her vote. Petitioner’s evidence is therefore insufficient to establish that any alleged irregularities affected the outcome of the election or were so pervasive that they vitiated its fundamental fairness. This should not, however, be interpreted as an endorsement of respondent’s conduct.
Finally, petitioner alleges that respondent denied her FOIL request for certain district emails in order “to hide [respondent’s] illegal advocacy campaign ...” and requests that I conduct an in camera review of these documents. She concedes that the Commissioner generally lacks jurisdiction over FOIL claims, but asserts that, “under [the Commissioner’s] administrative and investigative powers,” she “may take administrative notice of an associated collateral FOIL matter and review … emails in so far [sic] as such emails pertain to the subject of [the] petition.”
Petitioner’s request amounts to an appeal of respondent’s FOIL determination. Section 89 of the Public Officers Law vests exclusive jurisdiction over alleged FOIL violations in the Supreme Court of the State of New York (Appeal of H.A., 57 Ed Dept Rep, Decision No. 17,215; Appeal of Olka, 48 id. 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747). Therefore, such allegations may not be adjudicated in an appeal pursuant to Education Law § 310, and I have no jurisdiction to address the FOIL allegations raised in this appeal (Appeal of Tesser and Kavitsky, 42 Ed Dept Rep 341, Decision No. 14,876).
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioner, a district resident, purports to represent herself and “other taxpayers” in the caption of the appeal. Other than this statement, petitioner has not met the requirements to maintain this appeal on behalf of a class (8 NYCRR 275.2; see Appeal of Beyda, 58 Ed Dept Rep, Decision No. 17,540).
 To the extent petitioner challenges the SEQRA determination itself, the sole mechanism for challenging a SEQRA decision is a proceeding pursuant to Article 78 of the Civil Practice Law and Rules (Appeal of Groarke and Meindl, 48 Ed Dept Rep 427, Decision No. 15,904; Appeal of Mullen, 45 id. 492, Decision No. 15,390).
 This is consistent with the affidavit of a district resident, who indicates that, at a March 2, 2022 board meeting, the board president stated that “there were no plans to install lights at the fields,” but “the underground infrastructure for lists was part of the project in the event [that,] at some future time, [a] future [board] might want to add lights.”
 The voters do not indicate that the alleged exhortation caused them to change their votes—or, indeed, that they voted at all.
 Although respondent denies the relevant paragraphs containing these allegations, it is unclear exactly what it denies because the assertions are part fact and part allegation. For example, paragraph 26 of the petition asserts: “In such video, groups of student athletes are shown on athletic fields saying ‘If you build it, we will play[,]” which falsely suggests or implies that if it is not built[,] the children will not be able to play. In a situation such as this, respondent should separately admit or deny each assertion, regardless of whether it is grouped within a larger paragraph.
 Petitioner also alleges that respondent’s athletic director coordinated with the CCF to promote this video via email. However, the email that petitioner submits in support thereof merely reveals that the CCF forwarded a copy of an email sent by the athletic director sent to district coaches. The text of that email contains no evidence of coordination. I further note that the athletic director advised coaches not to engage in partisan advocacy, writing: “[d]on’t tell people how to vote; just let them know that there is an upcoming vote and info session ….”