Decision No. 12,828

(October 30, 1992)

SOBOL, Commissioner.--Petitioner seeks to set aside the results of a bond vote held on December 11, 1991, when the voters approved a proposition to renovate and expand an elementary school. The appeal must be dismissed.

On December 11, 1991, respondent board of education met to consider a proposition on the issuance of $9.987 million of bonds to fund the renovation and expansion of its Cahill Elementary School. The bond issue was approved by the voters, 1,424 to 1,309. The authorized reconstruction project included the abatement of asbestos hazards, furnishings, machinery, equipment apparatus and other incidental improvements to the Cahill Elementary School. Prior to the meeting, respondent held informational community meetings to discuss the then proposed bond issue and reconstruction project, excerpts of which were videotaped and presented on the local cable access channel. A legal notice of the special district meeting set forth that a maximum estimated cost of $9,987,000.00 would be raised by a levy on the taxable property of the school district. A bond resolution authorizing the issuance of $9,987,000.00 serial bonds to finance the costs of the reconstruction project was adopted by respondent on February 10, 1992.

There are six projects encompassed by the $9.987 million bond authorization. Respondent has applied for and received approval for all six projects from the State Education Department. The asbestos abatement project has been completed and work has commenced on other projects. As of July 21, 1992, respondent has incurred expenses totalling $970,652.40. This appeal was commenced on July 13, 1992.

Petitioner asserts that respondent intentionally misled the voters that the taxpayer obligation would be only $4.7 million, and not $9.987 million. Further, petitioner contends the voters would never have approved the bond issue if they had not been misled by newspaper reports and a televised "commercial", which was paid for by respondent. They seek to have the Commissioner declare the December 11, 1991 approval null and void, or, in the alternative, guarantee the taxpayer obligation will only be $4.7 million.

Respondent asserts that the appeal is untimely since it is filed more than thirty days after the bond issue was passed by the voters. Furthermore, respondent contends that petitioner has failed to establish that improper actions affected the outcome of the election. Respondent further argues that nullifying the bond vote would cause undue hardship since substantial funds have already been expended, and that other relief requested by petitioner is beyond the scope of the Commissioner's authority.

An appeal must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Greenspan, 29 Ed Dept Rep 397). The bond vote occurred on December 11, 1991. The board resolution authorizing the issuance of bonds was passed on February 10, 1992. This appeal was not initiated until July 13, 1992, five months after the board resolution, and seven months after the vote. Petitioner offers no explanation for the delay. The appeal is untimely and, therefore, must be dismissed.

In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Verity, 31 Ed Dept Rep 485; Appeal of Singh, 30 id. 284). Even if I did not dismiss the appeal on procedural grounds, I would be constrained to dismiss it on the merits. A school district election will not be set aside in the absence of proof that the alleged misconduct affected the outcome of the election. (Appeal of Luening, 31 Ed Dept Rep 534; Appeal of Pucci, 31 id. 3; Matter of Boyes et al. v. Allen, et al., 59 Misc 2d 975, reversed 32 AD2d 990, aff'd 26 NY2d 709). Where a vote on a capital project and financing thereof, the proof must contain affidavits or statements from individuals who voted in favor of the proposition that their vote would have been otherwise but for the alleged misconduct (Appeal of Hable, 30 Ed Dept Rep 73). Petitioner has submitted petitions with 1,200 signatures that request a re-vote. Petitioner submits no proof that anyone who voted for the financing would have voted differently, but for the alleged misleading information. Accordingly, petitioner has not met his burden, and the appeal must be dismissed.

Moreover, the record reflects that the video paid for by respondent accurately refers to the $9.987 million to be bonded for construction and renovation for the Cahill Elementary School. Even if newspaper articles contain misleading information, respondent has no control over what information is printed. Furthermore, legal notices and the actual resolution voted on by the voters contain the $9,987,000.00 figure that would be raised by a levy on taxable property of the district. Petitioner has failed to demonstrate that respondent misled the voters, since the record reflects that information presented by respondent to the voters contained accurate information concerning the amount of the bond issue.

Furthermore, since this appeal has been filed, all the projects relating to the bond vote have been approved by the State Education Department. Pursuant to Education Law '3602(6) and Commissioner's Regulations '155.2, respondent must still submit final working drawings and specifications, actual bid prices and cost index and actual expenditures to the State Education Department. At that point, building aid will be awarded in amounts that accord with formulas adopted by the State Legislature. Upon the filing and approval of the appropriate documentation, respondent will receive building aid for the project. Therefore, provided the costs associated with the project are close to the estimated costs, respondent may not, in reality, be paying any more than petitioner insists the voters were assured by respondent they would be paying.

Finally, once substantial funds have been expended by a school district, a subsequent recision of the authorization may be deleterious to the school district. (Matter of Brown, 8 Ed Dept Rep 70). Since the record reflects that in reliance upon voter authorization, $970,652.40 has already been expended by respondent, to invalidate the voters' approval now would clearly have a deleterious effect on respondent.

I have considered petitioners other claims and find them without merit.

THE APPEAL IS DISMISSED.

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