School District Engages in “Improper Advocacy”

Written By: Robert Cox

The School District has been telling parents that if the 2009-10 School Budget does not pass that the long-promised “Full-Day Kindergarten” will be in jeopardy. Before we get into the issue in more detail, we want to first review the issue of “Improper Advocacy”. We would direct your attention to the bottom of this post — if the Commission of Education finds that the school district improperly influenced the vote the vote can be annulled. We would strongly encourage school district employees — especially Dr. Korostoff and Richard Organisciak — to acquaint themselves with the law because it would be regrettable if the District had to pay the cost of an entirely new election just because they could not refrain from improper advocacy. The District can start by discontinuing the practice of communicating the idea that if the budget is voted down the Full-Day Kindergarten will not be implemented.

Improper Advocacy

6:49. May a school district urge voters to vote in favor of a proposed school district budget or other ballot proposition?

No. School districts are prohibited from spending public money to encourage voters to vote in favor of the school budget or any proposition. Distict funds may not be used to express “favoritism, partisanship, partiality, approval or disapproval … Of any issue, worthy asit may be” (Phillips v. Maurer, 67 N.Y. 2d 672 (1986); see also Appeal of Hubbard, 39 Educ. Dep’t Rep. 363(1999)).

This prohibition is not limited to advocating a “yes” vote. Even subtle promotional activities are prohibited (Appeal of Meyer, 38 Educ. Dep’t Rep. 285 (1998)).

However, “it is not impermissible per se to state that rejection of the budget may result in the elimination of programs” (Appeal of Julian, 42 Educ. Dep’t rep. 300 (2003)). In addition, there is nothing wrong with stating, as fact, in a district newsletter, that a particular proposition has the “unanimous support of the board of education” if indeed that is the case (Appeal of Brown, 43 Educ. Dep’t Rep 231 (2003)).

6:50. May individual school board members acting in their personal capacity urge voters to vote in favor of a proposed school district budget or other ballot proposition?

Yes. Individual school board members and other school officials, acting in their personal capacity, have the same right as any other member of the community to express their views on public issues. They may actively support a proposed budget and other ballot propositions, as long as they do so at their own expense and on their own behalf. In other words, they cannot use ditrict funds, facilities, or channels of communication, or claim to be speaking on behalf of the board and must avoid giving the impression they are doing so (Appeal of Johnson, 45 Educ. Dep’t Rep.469 (2006); Appeal of Goldin, 40 Educ. Dep’t Rep. 628 (2001); see also Appeal of Eisenkraft, 38 Educ. Dep’t Rep. 553 (1999); Appeal of Dinan, 36 Educ. Dep’t Rep. 370 (1997); Appeal of Carroll, 33 Educ. Dep’t Rep. 219 (1993); Appeal of Weaver, 28 Educ. Dep’t Rep. 183 (1988); Matter of Wolff, 17 Educ. Dep’t Rep. 297 (1978)).

In one case, for example, the commissioner found that while it would be improper for a board member to use the district’s postage permit to mail partisan materials, there would be nothing improper about the same board memember using his own private bulk mail permit to distribute campaign literature in support of candiates running fo the board of education (Appeal of Allen, 39 Educ. Dep’t Rep. 528 (2000)).

In another case, the commissioner dismissed an appeal filed against a school board where a board candidate inadvertently included a school district telephone number on a campaign flyer but did not actually use the district’s telephone for campaign purposes (Appeal of Grant, 42 educ. Dep’t Rep. 184 (2002)).

6:51. May school districts provide factual materials to the voters about the school budget and other ballot propositions?

Yes. Districts may provide purely factual materials on the school budget or other ballot propositions through means aimed at reaching the electorate as a whole in order to help them make an informed decision (Appeal of Prentice, 38 Educ. Dep’t Rep. 736(1999); see also Appeal of Loriz, 27 Educ. Dep’t Rep. 376 (1988)). In fct, school boards and school superintendents have a “statutory obligation to present and publicize school budgets so as to ‘promote public comprehension’” (Gersen v. Mills, Sup. Ct. Albany Co., Special Term, Sheridan, J., Apr. 21, 2000, unreported rev’d on other grounds, 290 A.D.2d 839 (3d Dep’t) 2002)). Such activities promote “the general public policy of this State to foster public awareness and understanding of governmental actions and to encourage participation therein” (Gersen, citing Pub. Off. Law 84.)

6:52. May a school board use a videotape to communicate budget information to the voters?

It depends.

6:53. What are some examples of improper budget advocacy by a school district?

Determining precisely what type of language constitutes improper advocacy can be difficult. For example, in one case, a district pamphlet included a statement indicating that a favorable vote on a bond referendum for school construction and renovation would “bring families back” to the community. The commissioner of education ruled that while the district’s use of the statement “presents a close question…on balance…the statement is intended to persuade the public by promoting the positive consequences o a ‘yes’ vote. It does not set forth objective facts designed to educate or inform the public. Thus, this statement constitutes improper advocacy.” The commissioner then admonished the district “to refrain from speculating about the effect future proposals might have on bringing families back to the city in an attempt to persuade the public to take a particular position on such propositions” (Appeal of D’Oronzio, 41 Educ. Dep’t Rep. 457 (2002)).

In yet another case, the commissioner of education admonished a district based on a letter from the superintendent that included the sentence: “Unfortunately, with a school budget defeat and the adoption of an austerity budget, we are not able to make these purchases or provide the services as stated above without voter authorization [emphasis added].” According to the commissioner, “[t]he use of ‘unfortunately, in the context of the letter, could be construed as improper advocacy on behalf of the propositions and the use of such term or similar language should be avoided” (Appeal of Schadtle, 38 Educ. Dep’t Rep. 599 (1999); see also Appeal of Eckert, 40 Educ. Dep’t Rep. 433 (2000); and Appeal of Miller, 39 Educ. Dep’t Rep. 348 (1999)).

The commissioner also has found problematic language in a letter by individual board members expressing their support for a budget proposal that stated “the BOCES board strongly believes that it is our responsibility to move forward on a plan that is mutually beneficial to all of its school districts. We encourage voters to support this proposal…” Even though the letter was written by individual board members on their own behalf and at their own cost, the commissioner cautioned the language did not clearly distinguish between the personal views of the individual board members and those of the board (Appeal of Johnson, 45 Educ. Dep’t Rep. 469 (2006)).

In contrast, a court overturned a commissioner’s decision, which held that a school district’s use of the word “need” in informational materials describing the proposed school budget constituted improper advocacy (Gersen v. Mills, Sup. Ct., Albany Co., Special Term, Sheridan, J., Apr. 21, 2000, unreported, rev’d on other grounds, 290 A.D.2d 839 (3d Dep’t 2002)). According to the court, the district was simply “explaining the reasons for various provisions in the budget [and] such relatively neutral language neither advocates a position nor ‘patently exhorts’ the voters to cast their ballots in favor of the proposed budget.”

6:54. May school officials treat as “fact” statements about property values diminishing if the school budget is defeated at the polls?

No. Although there is a common perception in many communities that property values correspond directly with the quality of the public schools, the commissioner has directed school officials to “refrain from speculating about the effect future proposals might have on property values in an attempt to persuade the public to take a particular position” on a ballot proposition (Appeal of Karpoff, 40 Educ. Dep’t Rep. 459 (2000), 192 Misc.2d 487 (2001), aff’d, 296 A.D.2d 691 (3d Dep’t 2002), appeal denied 99 N.Y.2d 501(2002); see also Appeal of Eckert, 40 Educ. Dep’t Rep. 433 (2000).

6:56 What happens if a district advocates on behalf of the proposed budget or other proposition?

If the commissioner of education finds that such advocacy affected the outcome of the vote, he or she may annul the results of the vote and order a new election (Appeal of Leman, 38 Educ. Dep’t Rep. 683 (1999); see also 6:36). The commissioner also may remove from office school officials who engage in a willful violation of Phillips v. Maurer, 67 N.Y.2d 672 (198) (see 6:49) or neglect their duty to adhere to the court’s ruling in that case (see 306(1); 2:34-35). In addition, the commissioner can withhold state funding from any district that willfully advocates on behalf of the proposed budget or other proposition (see 306(2)).

6:57. Should districts avoid creating an “appearance of impropriety” when engaging in activities that technically do not constitute partisan advocacy?

Yes. According to the commissioner of education, districts should avoid engaging in activities that create an “appearance of impropriety” even if the activity itself technically does not violate the prohibition against partisan advocacy.

SOURCE: 31st Edition School Law New York State School Boards Association New York State Bar Association p. 142-146

5 thoughts on “School District Engages in “Improper Advocacy””

  1. Improper advocacy is
    Improper advocacy is confusing to saty the least. I’ve been going to the Magnet School open houses and at Trinity the question about all day kindergarten was answered with the claim of state funds are in place to make this happen. At Webster, someone asked a question along the lines of -how can we know if we’ll have all day kindergarten- and the answer given related it to the budget vote. Until I read the story here about improper advocacy, it didn’t register. Had I known I would be giving direct quotes instead of paraphrasing and I would be able to tell you if it was said by Dr Korostov or the principal. There was no doubt about getting the impression that if the budget passed we would get the all day K. It seemed odd to get different statements at different schools but it didn’t click until i read the story here. Now I’m completely confused.

    1. We spoke to a parent who
      We spoke to a parent who attended the Webster meeting and said that it was Dr. Korostof who connected the conditionality of the full day kindergarten and the passing of the budget. He did the same thing at the first meeting at the high school. That one is on video tape. Anyone care to FOIL it?

    2. John Quinn, Assistant
      John Quinn, Assistant Superintendent for Finance, explains the money behind full-day K in the initial budget meeting video which is supposed to air on channel 75 at some point.

      I wrote about it already in my previous post but I believe it is correct to say that the state will reimburse the district for the cost to “convert” to full-day K. Specifically, the cost of any constructions and the cost of furniture and supplies. So, there is state money for that cost and I believe the total cost of that is around $600K. That is a one-time reimbursement.

      The cost of transportation will be less because you do not have that midday bus run (it is not HALF because some buses have extra capacity but it will be cheaper to do this).

      There will be double the state aid for kids who in full-day rather than half-day programs. Not sure about federal money.

      The part they are not, in my view, being honest about is teachers. They are not going to hire ANY new teachers but they are going to spend $110,000 on more aides. I do not believe parents will feel that aides are the same as certified teachers. What they do not want to clarify is the impact of student/teacher ratios but obviously there will be more students per certified teachers. I suspect that their goal is to first get the program in place THEN come back next year for more teachers to bring the ratio back in line with the current figure.

      So, it may be the case that in Year One, the cost to the district will be reduced significantly by state aid but as that is a one-time deal that money will not be there next year. Meanwhile, if more teachers are hired to improve the ratio, the program becomes a new, on-going cost, somewhere between $500,000 and $1mm a year. Personally, I do not have a problem with that as it strikes me as money well-spent. I just do not like the backdoor way the District is going about it.

      There is also the question of supplies. They say they are cutting the supply budget by 11%. Big whoop. Supplies are 1.9% of the budget so you are talking a trivial amount on a $230mm budget — about $500,000. Except it is not really $500,000 because the full-day K program contains $414,000 for supplies. It seems to me that that they simply shifted $414,000 to a different line item and then treated that as a cut to the budget when in reality, if you add back the $414K to the amount they say they cut you get more like a 2% cut in the supplies budget. It is smart to do this because this way the state picks up the tab but it is disingenuous of the District to lay claim to “cutting” the supplies budget by 11% when the actual figure is 2%.

      John Quinn actually said that in the first year the District might even MAKE MONEY by switching to full-day K.

      If that is the case — or even something close to it — why would not passing the budget impact this particular budget item. If it is net gain or “found money” from the state why would it be cut?

      Further, the state is putting up the money because they WANT districts to go to full-day K. In fact, New Rochelle is one of the last in the state not to have it.

      So, if the budget fails (twice) and the state comes in with a contingency budget and they are making the decisions how to spend the money would they not likely take that opportunity to push through the full-day K they have been pushing on New Rochelle for a decade?

      There is no convincing case that a state run contingency budget would mean the full-day K would not happen.

      Further, the budget has to fail TWICE. So a “no” vote on May 19th, gives the District plenty of time to re-work the budget to reduce spending. As Full-Day K is a “net gain” and qualifies for all sorts of state funding, there would seem absolutely no reason for the district to drop full-day K as a way to reduce spending.

      Bottom line is that we are going to get Full Day K regardless of what happens to the budget and attempts by the district is merely a device to scare up votes.

      As to WHY they would seek to use that device, consider that only 3,000 people voted last year and the budget passed by about 500 votes. Anyone with a child up to about age 5 will be susceptible to this line of argument which is likely more than 500 voters.

      Beyond that, ALL of the things the district is talking about our red herrings – cutting the supplies budget, full-day K, cutting insurance premiums by $200K, turning out the lights and computers, etc. This is all a big bunch of BS meant to district voters from looking at a few key numbers.

      1) 54% of expenditures are for salaries and benefits so what happens with the union negotiations will have FAR MORE impact than buying less crayons.

      2) 74% of the revenue in the budget is from property taxes so their wildly optimistic assumption that the value of assessed property will only drop 1.4% (same as last year) is far more important than state reimbursement for buying new furniture for pre-K classrooms. No sane person believes that there will be a very large decrease in the value of assessed property this year.

      The more time voters spending focusing on Full-Day K, so-called “Green Initiatives” and the money the district is saving by switching to GEICO, the happier the District leadership will be since it keeps the focus OFF the only number that matters – the district wants to take $180,000,000 from property owners.

      They are also quite happy to exploit the owner/renter divide and the residential/commercial divide. They do not want renters to think about how a 10% increase in property tax will translate into higher rent or how that will cause retail establishments, restaurants, etc to raise prices or close or why businesses might relocate out of New Rochelle to lower cost places like Virginia (see Vernon, Lillian). So long as they can pit one group against the other and keep the focus off their profligate spending they will keep getting their budgets approved and keep up the spending spree.

  2. Nothing in your lengthy
    Nothing in your lengthy citation indicates that stating the fact that the implementation of all day kindergarten is dependent upon the passage of the budget is prohibited. Indeed, your citation states” However, “it is not impermissible per se to state that rejection of the budget may result in the elimination of programs” (Appeal of Julian, 42 Educ. Dep’t rep. 300 (2003)).’

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    1. Anon,
      You wrote: “Nothing in

      Anon,

      You wrote: “Nothing in your lengthy citation indicates that stating the fact that the implementation of all day kindergarten is dependent upon the passage of the budget is prohibited.”

      This would be correct except for one thing. It is not a “fact” that full-day is dependent on passage of the budget. If the budget vote fails on 5/19 that does not mean there will not be Full-Day K. It is a scare tactic, nothing more, and thus a form of improper advocacy. Also, the quote you cited is about getting rid of existing programs not implementing new programs which are being actively promoted and funded by the state.

      I am sure you heard Mr. Quinn say that the state is actively encouraging district’s to implement full-day K and is providing funds to cover all of the costs of converting to full-day K. You would also know that Mr. Quinn said that because of the lower cost of transportation and that no new teachers would need to be hired, the first year would not cost the district anything. He even said “we might make money” from the conversion to full-day K.

      It is certainly improper advocacy to scare parents into voting YES on the budget on the grounds that their children will not get Full-Day K unless the budget passes. It is simply not true.

      In fact, if the budget does not pass on 5/19, the next step is a second vote on the same budget or a revised budget. If, and only if, that votes fails would the state step in. With the state pushing districts to go to full-day K and then state then in charge under this scenario, why would anyone expect that the state will not take the opportunity to implement full-day K (something the state has been pushing but has been resisted by the district for many years).

      Other than that you make an excellent point.

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