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Decision No. 18,258

Appeal of MICHELLE KAVANAUGH, PAUL T. KAVANAUGH, TERESA REILE, AND DAVID TORKE from action of the Board of Education of the East Aurora Union Free School District, Jessica B. Armbrust, Terri Ohlweiler, Paul Blowers, Daniel Brunson, Joseph Cassidy, Kimberlee Danieu, and Judith Malys as trustees and Brian Russ in his capacity as superintendent regarding an election and budget vote.

Decision No. 18,258

(March 30, 2023)

Webster Szanyi LLP, attorneys for respondent, Marnie E. Smith, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal from actions of the Board of Education of the East Aurora Union Free School District (“board”), superintendent Brian Russ (“superintendent”), and board members Jessica B. Armbrust, Terri Ohlweiler, Paul Blowers, Daniel Brunson, Joseph Cassidy, Kimberlee Danieu, and Judith Malys (collectively, “respondents”) regarding the district’s May 17, 2022 school board election and budget vote.  The appeal must be dismissed. 

Petitioners raise numerous allegations relating to respondents’ purported conduct leading up to and during the May 2022 election.  Petitioners contend that respondents, primarily the superintendent, harassed campaign volunteers, used district resources for partisan purposes, and engaged in “partisan interference.”  For relief, petitioners request that I order respondents to refrain from:  (1) “harassing and discriminatory actions that unduly restrict the[ir] civil rights”; (2) “using district resources to advocate a partisan position with respect to matters that are the subject of a school district vote”; and (3) “directly interfering, or providing the appearance of impropriety, by engaging in actions that are partisan in nature.”  Petitioners do not request a new election.

Respondents argue that petitioners have not shown that respondents engaged in any improper electioneering or partisan activity. Respondents deny that petitioners are entitled to any relief.

First, I must address a procedural issue.  Petitioners’ reply contains new allegations that were not raised in the petition.  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. 

The appeal must be dismissed for failure to state a claim upon which relief can be granted.  Although petitioners raise several arguments related to the May 2022 election, they do not seek any relief in connection therewith.  Instead, their sought relief is declaratory in nature or otherwise outside the scope of an appeal to the Commissioner pursuant to Education Law § 310 (see Appeal of Davidson, 61 Ed Dept Rep, Decision No. 18,127 [Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law § 310]; Appeal of Moss and Teague, 61 id., Decision No. 18,106 [appeal to Commissioner not appropriate forum for civil rights claims]).  Therefore, the appeal must be dismissed.

In any event, petitioners have failed to meet their burden of proof in support of the allegations raised in their petition.[1]  Petitioners principally complain of the following conduct: (1) the superintendent improperly prevented them from campaigning in front of the school; (2) the superintendent “hovered” over petitioner Torke while he was completing his ballot; (3) respondents harassed petitioner Reile by questioning her residency; and (4) respondent engaged in partisan advocacy in connection with a spring 2022 newsletter.   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). 

First, petitioners have not demonstrated that respondents enforced the 100-foot electioneering boundary in a discriminatory manner.  It appears that a school resource officer (“SRO”) opined that certain petitioners could not campaign on a sidewalk, a determination that was later reversed by an officer of the East Aurora Police Department.  Petitioners allege that the SRO told Mr. and Mrs. Kavanaugh that “the District does not want you here,” which, they argue, reflected personal or discriminatory animus.  By contrast, the superintendent avers that he asked the SRO to investigate after receiving reports of a woman and a man “intimidat[ing]” voters on the sidewalk.  Petitioners have not established that the superintendent knew the identities of the individuals on the sidewalk, let alone harbored discriminatory intent.[2]

Second, respondents have provided a reasonable explanation to rebut petitioners’ claim that the superintendent “hover[ed]” over petitioner Torke at the polling place; namely, that the superintendent was speaking with a third party when petitioner Torke chose to sit in a nearby seat to complete his ballot.  The superintendent avers that he did not notice petitioner Torke until petitioner Torke spoke to him, at which point he promptly changed locations.  As with the above claim, petitioners have not proven that the superintendent acted improperly, let alone with an improper motive.

Third, respondents appropriately inquired as to whether petitioner Reile met the residency requirements of Education Law § 2102.  That statute requires that a candidate for a trustee position on respondent board must “have been a resident of the school district ... for at least one year prior to the election.”  On May 9, 2022, respondents received evidence suggesting that petitioner Reile resided in Florida.  Counsel for the board thereafter wrote to petitioner Reile two days later, requesting that she submit proof of her residency within twenty-four hours.  While this was a relatively short timeframe, there is no evidence that petitioner Reile asked for additional time or that counsel for respondents was unwilling to provide an extension.  Instead, petitioner Reile chose to withdraw as a candidate on May 12, 2022.  Thus, petitioners’ claim is without merit.

Petitioners additionally claim that respondents unlawfully advocated for passage of the proposed budget in a spring 2022 newsletter that contained statements from an incumbent board member.  While a board of education may disseminate factual information “‘reasonably necessary’ to educate the public,” it 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)];Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296;Appeal of Caswell, 48 id. 472, Decision No. 15,920).  I have reviewed the spring 2022 newsletter and do not find that it promotes a partisan position.  Positive assessments of a school district such as its status as a “top performing district” or its “solid ... long-range financial plan” do not rise to the level of impermissible advocacy (e.g., Appeal of Romano, 61 Ed Dept Rep, Decision No. 18,076).

Finally, the individual respondents request a certification of good faith pursuant to Education Law § 3811 (1).  Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in section 3811 (1).  The Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594).  Since there has been no finding that respondents acted in bad faith, I hereby certify for the purpose of Education Law § 3811 (1) that all individual respondents acted in good faith.

I have considered petitioners’ remaining contentions and find them to be without merit.




[1] Additionally, some claims would be dismissed as untimely.   Petitioners challenge numerous actions by respondents that took place more than 30 days prior to the commencement of this appeal but offer no explanation for the delay (see 8 NYCRR 275.16).


[2] Additionally, I find that the superintendent reasonably requested that the SRO investigate such claims (see Appeal of D.S., 61 Ed Dept Rep, Decision No. 18,073).