Monday, June 27, 2011

Union use of school e-mail in connection with a school board election

Union use of school e-mail in connection with a school board election
Appeal of John M. Himmelberg and Andrew J. Little, Decisions of the Commissioner of Education, Decision No. 15,490

Himmelberg and Little, unsuccessful school board candidates, challenge certain events related to a school board election. The Commissioner sustained the appeal in part.

Essentially, Himmelberg and Little complained that the president of the Fairport Education Association, the union representing the district’s teachers, used his district e-mail account to send e-mail to the district e-mail accounts of all union members advising the members of the union’s endorsement of two candidates for seats on the board. The e-mail also set forth the reasons the union chose not to endorse Himmelberg and Little.

In response to Himmelberg’s and Little’s objection, the school superintendent said that the union had the contractual right to use the district’s e-mail system to communicate with its members and that neither he nor the board endorsed the union president’s message.

After the election, the union distributed a newsletter to teachers via their district mailboxes. The newsletter included a message from the union president discussing the “hard core haters leading the effort against our school district.” While the newsletter did not refer to either Himmelberg or Little by name, it did name individuals the union president previously had identified as associated with them

Ultimately, Himmelberg and Little appealed to the Commissioner. The Commissioner granted the appeal in part. He said that although a board of education may provide informational material to the voters concerning a vote or election, the use of district resources to distribute materials designed to solicit favorable votes violates the constitutional prohibition against use of public funds to promote a partisan political position. Further, said the Commissioner, “Even indirect support, such as a school board giving a private organization access to its established channels of communication to espouse a partisan position has been deemed improper” and “lending indirect support to the private organization’s efforts to influence the vote, permitting such use of school facilities also lends an appearance of prohibited partisan activity by the school district, which should be avoided.”

Accordingly, the Commissioner found that under the facts of this case, the school district improperly permitted the union to use district resources to advocate the union’s position. Although the district asserted that the union’s use of e-mail was undertaken pursuant to its contract and was consistent with the parties’ longstanding practice, the Commissioner said that the parties’ collective bargaining agreement cannot authorize unconstitutional partisan use of district resources.

In contrast, the Commissioner said that “The post-election newsletter … did not constitute improper advocacy. While it contained strong, potentially divisive language, it was not directed at a specific question before the voters and was directed to union members only.

The Commissioner ordered the district to review its policies to ensure that adequate safeguards are in place to guard against improper partisan political activity.

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