Decision No. 12,771

(August 5, 1992)

SOBOL, Commissioner.--Petitioner, Maureen French, appeals from the decision of respondent Board of Education of the Sidney Central School District ("respondent"), not to hold a special district meeting and place a proposition regarding a capital project before the voters. The appeal is sustained in part.

On November 20, 1991, the voters in respondent school district defeated a proposition for a $6.5 million dollar capital project. On March 24, 1992, the superintendent recommended that the board place a $5.5 million dollar proposition before the voters for the same capital project.

Although the board of education consists of seven members, at the time the vote was taken, one of its members had resigned. With only six members, three voted in favor of placing the revised proposition before the voters and three voted against it. On April 14, 1992, petitioner submitted a petition pursuant to Education Law '2008 to respondent seeking to have the same proposition placed before the voters. Again, three members of the board voted in favor of placing the proposition before the voters and three voted against it. This appeal ensued.

Petitioner seeks an order compelling respondent to hold a special district meeting to place the proposition in question before the voters. Respondent simply asks that I determine whether the board of education is required to call a special district meeting to place the proposition before the voters and otherwise takes no position on the merits of this appeal.

Education Law '2008 provides that when a petition is presented to a board of education with the requisite number of signatures, the board must call a special meeting. The statute provides certain exceptions, including one that recognizes the board's right not to call a special meeting for a valid reason, which if appealed to the Commissioner would be deemed sufficient cause for refusal (Education Law '2008(2)(d)). In any case, however, Education Law '2008 requires that the board take action within twenty days of its receipt of a petition for a special meeting. Failure to accept or reject such petitions is improper (Appeal of Swanson, 29 Ed Dept Rep 453).

Although respondent attempted to act on the voters' petition, its failure to fill the board's vacancy, as required by Education Law '1709, resulted in a deadlock and the board's inaction in response to the petition requesting a special meeting. Although there is nothing in the record indicating that the board would be compelled to place the petition before the voters, where a similar proposition was presented and defeated by the voters during the same school year, respondent's failure to act cannot be excused (Matter of Eaton, 11 Ed Dept Rep 17; Matter of Morrill, et al., 10 id. 247). Because a new board member has since been elected and the newly constituted board should be able to vote on whether to hold a special meeting, the matter is remanded to respondent board of education to act on this petition as required by Education Law '2008.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent board of education act on the aforementioned petition.

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