Affirmation - Schulman, et al. v. Monticello CSD


SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SULLIVAN
In the Matter of the Application of

MARK LEWIS SCHULMAN, JILL SCHULMAN,
JEFFREY HERZOG, MIRIAM HERZOG, JEFFREY
KARASIK, DEBORAH KARASIK, JOHN
BARBARITE, JANET  LYNN, ISADORE SHAMES and
MURIEL SHAMES, from  action of the Board of Education 
of the Monticello Central School District to invalidate a 
school district Bond Referendum.
                                   Petitioners,       
                                                  Index No.:
             
                                                  AFFIRMATION
                                                  OF ATTORNEY
               -against-

BOARD OF EDUCATION of the MONTICELLO
CENTRAL SCHOOL DISTRICT and THE 
COMMISSIONER OF EDUCATION of the State 
of New York,
                                   Respondents,


For a Judgment under Article 78 of the Civil Practice
Law and Rules Annulling Determination that
Dismissed Petitioners' Appeal Seeking to Invalidate 
the March 26, 1997 Monticello Central School District
Bond Referendum

I, Mark Lewis Schulman, an attorney duly admitted to the practice of law before the Courts of the State of New York do hereby affirm under penalty of perjury as follows:

1. I am the attorney for the petitioners in that above captioned matter and have personal knowledge of all of the facts and circumstances set forth herein except where alleged upon information and belief.

2. The facts are set forth in the petition. Briefly, the Board of Education of the Monticello Central School District (hereinafter MCSD) held a referendum to bond the construction of a new school and incidental repairs at a cost of $41,806,021.00 on December 11, 1996 which was defeated.

The MCSD held another referendum on March 27, 1997 to bond the construction of a new school and incidental repairs at a cost of $34,104.694.00 which passed. However, prior to the March referendum the MCSD disseminated to voters within the district literature that expressly declared that the $34,104,694.00 to be raised by tax levy would be offset by $10 million over 20 years from the lease of the middle school owned by the MCSD because, "The BOCES Board of Education has now approved the terms of a lease and the receipt of the $10 million is assured."

3. As set forth in the petition, neither the BOCES Board of Education or the MCSD approved a lease or lease terms prior to the referendum or upon information and belief at any time thereafter.

4. As set forth in the petition:

The MCSD did not satisfy any of the criteria set forth in 403-a of the Education Law, to wit, to adopt a resolution to lease real property at a rental payment not be less than the fair market rental value as determined by the board of education, for a term not to exceed ten years, upon the consent of the commissioner except for a period in excess of ten years subject to voter approval by referendum, which lease may provide for cancellation upon, (1) a substantial increase or decrease in pupil enrollment; (2) a substantial change in the needs and requirements of a school district with respect to facilities; (3) any other change which substantially affects the needs or requirements of a school district or the community in which it is located.

BOCES did not satisfy any of the criteria set forth in section 1959(4)(p)(a) of the Education Law, to wit, to rent suitable buildings for a period not to exceed ten years pursuant to the adoption of a resolution determining that such agreement is in the best financial interests of the supervisory district and stating the basis of that determination before executing any lease, that the rental payment shall not be more than the fair market value as determined by the board, that upon the consent of the commissioner, renewal of such lease may be made for a period of up to ten years subject to cancellation upon, (i) a substantial increase or decrease in pupil enrollment; (ii) a substantial change in the needs and requirements of a board of cooperative educational services with respect to facilities; (iii) any other change which substantially affects the needs or requirements of a board of cooperative educational services or the community in which it is located.

5. Section 1 959(4)(p)(a) of the Education Law specifically provides:

No lease or other contract for the occupancy of such land, classrooms, offices or buildings shall be enforceable against the board of cooperative educational services unless and until the same shall have been approved in writing by the commissioner.

6. Therefore, it was incontrovertible that the information disseminated by the MCSD concerning the proposed lease of the middle school building by BOCES being "firm" and the $10 million being "assured" was not factual and constituted a willful and intentional untruth which was disseminated for the purpose of misleading voters to vote in favor of the referendum believing that they would obtain an offset from the tax levy in that amount.

7. Not only was the information disseminated concerning the middle school lease not true, the voters were further mislead by the fact that the MCSD contributes 30.9% of the administrative costs of BOCES which would reduce the purported $10 million offset by $3,090,000.00.

8. The Commissioner of Education rejected petitioners' appeal holding, "I find that it was not unreasonable for the district to include in its literature information about the BOCES' commitment to lease the middle school, contingent upon the passage of the referendum" and "While respondent may have been overly optimistic in its depiction of the lease situation when it stated in the March 17 flyer that 'the receipt of the $10 million is assured,' it was not inaccurate for respondent to assert that it had a commitment from BOCES" and to conclude, "I find that respondent's information when provided to voters when taken as a whole, was not misleading.... To the extent that someone could find otherwise, I find that it was not intentionally or willfully misleading. Accordingly, petitioners have failed to meet their burden of proving improper conduct by respondent."

9. Petitioners submit that obvious misrepresentation disseminated in the MCSD literature before the referendum compromised the integrity of the referendum and that misinformed voters voted in favor of the referendum when having been informed and not misinformed would have voted against and that voters who were persuaded not to exercise their right to vote by the misinformation concerning the $10 million offset would have voted against the referendum. After all, a $10 million offset against a $34 million bond is a substantial and persuasive offset.

10. The determination of the Commissioner that petitioners failed to prove "improper conduct" in light of the substantial misrepresentation, per se, contained in the pre-referendum literature disseminated by the MCSD was without any discernible legal rational in view of the fact that no legally binding or enforceable agreement ever existed between the MCSD and BOCES, as a matter of law (1) and was therefore arbitrary and capricious, contrary to law and therefore subject to reversal.

11. As set forth in the petition, the action of the MCSD in disseminating false information containing critical distortions of vital facts intending to mislead voters and induce them to vote in favor of the March 27, 1997 bond issue were "so pervasive in nature as to vitiate the electoral process" and " constituted such pervasive conduct that "the fundamental fairness of the election is vitiated" (2) that the March 26, 1997 MCSD Bond Referendum be invalidated.

12. The Commissioner found that petitioners "also failed to prove that the alleged irregularities, namely the language included in the districts literature, actually affected the outcome of the election."

14. The Commissioner has, in fact, decided for the responsible voters, of common sense, within this district that but for formalizing the lease of the middle school between the district and BOCES, Ten Million Dollars over twenty years is assured and in doing so has denied to these voters their constitutional right to approve or disapprove a thirty four million dollar referendum which may not be offset by a $10 million [actually $6,910,000] offset.

15 To marshal a sufficient number of self serving affidavits before the Commissioner or this Honorable Court demonstrating, after the fact, that voters would have voted against the Bond Act who voted for it or those who did not vote would have voted against it but for the dissemination of misleading literature by MCSD would not change a thing.

16. The voters who will bear the impact of tax levy that will result from the March referendum are entitled to determine whether they wish to share the Commissioner's optimism and hope that the MCSD obtains a lease as favorable as it predicted or to vote against the referendum having, been provided with the ultimate facts, that the Commissioner received, to wit, that there was no binding commitment and that the $10 million was not only not "assured" but was really only $6,910,000.00.

17. Therefore, as set forth previously in paragraph eleven together with the authority annotated in the footnote, thereto, the action of the MCSD in disseminating false information containing critical distortions of vital facts intending to mislead voters and induce them to vote in favor of the March 27, 1997 bond issue were "so pervasive in nature as to vitiate the electoral process" and " constituted such pervasive conduct that "the fundamental fairness of the election is vitiated" (2) that the March 26, 1997 MCSD Bond Referendum be invalidated.

18. The voters and not the Commissioner have the right to make this determination since the impact of the falsity of the MCSD's literature will be born by them and not the State or the Commissioner. The voters had the right to vote upon the referendum possessing all the facts, not just some of them and not just optimistic projections.

WHEREFORE. the relief sought in the Petition must be Granted.

Dated: Monticello, New York
April 10, 1998

Mark Lewis Schulman, Esq.

A school election may be set aside where irregularities are "so pervasive in nature as to vitiate the electoral process" (Matter of Gilbert, 20 Ed. Dept. Rep. 174, 175); or the irregularities demonstrate "a clear and convincing picture of informality to the point of laxity with respect to the election provisions of the Education Law" (Matter of Nicoletta, 7 Ed. Dept. Rep. 115, 116; Matter of Levine, 24 Ed. Dept. Rep. 172, aff'd sub nom. Capobianco V. Ambach and Bd. off Ed., Glen Cove City School District, 112 A.D.2d 640 (30), 492 N.Y.S.2d 157). Implicit in these decisions is a recognition that there are rare cases in which errors in the conduct of a school election have become so pervasive that the fundamental fairness of the election is vitiated or a disregard of the law has been demonstrated.

(1) Education Law Sections 403(a) and 1950(4)(p)(a).

(2) A school election may be set aside where irregularities are "so pervasive in nature as to vitiate the electoral process" (Matter of Gilbert, 20 Ed. Dept. Rep. 174, 175); or the irregularities demonstrate "a clear and convincing picture of informality to the point of laxity with respect to the election provisions of the Education Law" (Matter of Nicoletta, 7 Ed. Dept. Rep. 115, 116; Matter of Levine, 24 Ed. Dept. Rep. 172, aff'd sub nom. Capobianco V. Ambach and Bd. off Ed., Glen Cove City School District, 112 A.D.2d 640 (30), 492 N.Y.S.2d 157). Implicit in these decisions is a recognition that there are rare cases in which errors in the conduct of a school election have become so pervasive that the fundamental fairness of the election is vitiated or a disregard of the low had been demonstrated.