Decision No. 12,919

(April 21, 1993)

 

Raymond G. Kuntz, P.C., attorneys for respondents

SOBOL, Commissioner.--Petitioners challenge respondents' conduct of a school district election. The appeal must be dismissed.

Petitioners were candidates for seats on respondent board of education. An election was held on May 6, 1992 to fill two board vacancies that are separate, specific offices. Petitioner Roujansky opposed incumbent respondent Sylvia Baumel and petitioner Leman opposed incumbent respondent Geraldine Miras. Respondent Margaret Umbrino was also a candidate for the specific vacancy of Ms. Miras.

Petitioners claim that respondents Baumel, Miras and Umbrino were given an opportunity to solicit signatures to their nominating petitions prior to the adoption of the public notice of the election at a regular school board meeting on March 10, 1992 and that, as a consequence, respondents' nominating petitions were invalid. Petitioners further allege that this opportunity to solicit signatures was approved and condoned by the other members of the school board who are named as respondents. In addition, petitioners allege that on April 6, 1992 respondent board members unjustifiably rejected three out of four propositions they submitted for placement on the ballot.

Respondents deny that the incumbent board members had an opportunity to solicit signatures prior to the general public's ability to obtain signatures and allege that nominating petitions were made available to the general public and petitioners in early February 1992. Respondents also contend that the three propositions were properly rejected. In addition, respondents contend that the appeal is untimely because it complains of events at the March 10, 1992 board meeting.

Petitioners served a petition on respondents on April 25, 1992. However, that petition was subsequently withdrawn and petitioners then served a new petition on respondent board members, except for Sylvia Bamel, on April 29, 1992 and on respondent school district and Sylvia Baumel on April 30, 1992. At that time petitioners sought a stay of the election scheduled for May 6, 1992, pending a final determination of their appeal. I subsequently denied petitioners' request for a stay.

The gravamen of petitioners' complaint regarding events at the March 10, 1992 board meeting is that respondents Baumel, Miras and Umbrino improperly obtained signatures of qualified voters on their nominating petitions prior to the adoption of the public notice of the election at the March 10 meeting, and prior to the availability of nominating petitions to the general public on March 11, 1992. In addition, petitioners claim that respondents, at the March 10 meeting, improperly determined that 150 signatures would be required to place a proposition on the ballot. Even if I were to assume, for the sake of argument, that signatures were improperly obtained on respondents' nominating positions, petitioners would not be aggrieved until such petitions were accepted by the district clerk on April 6, 1992. Therefore, I find that petitioners have timely commenced the appeal to challenge nominating petitions of respondents Baumel and Miras on the ground that some of the signatures were improperly obtained. However, to the extent petitioners challenge the determination of respondent board on March 10, 1992 that 150 signatures would be required to place a proposition on the ballot, the appeal is untimely since it was commenced more than 30 days after such determination.

Before proceeding to the merits, I must address one other procedural issue. Petitioners have submitted a reply containing a considerable number of new allegations and material which was not previously set forth in the petition and which does not respond to new material or affirmative defenses set forth in the answer. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Pronin, 27 Ed Dept Rep 203). Similarly, a reply may not be used to raise new issues (Appeal of Ver Hunce, et al., 26 Ed Dept Rep 340). Those portions of petitioners' reply containing new allegations and material will not be considered.

A school district election will not be set aside in the absence of proof that the alleged irregularities or misconduct affected the outcome of the election (Matter of Boyes v. Allen, et al., 32 AD2d 990; aff'd. 26 NY2d 709; Appeal of Como, et al., 28 Ed Dept Rep 483), are so pervasive in nature as to vitiate the electoral process (Matter of Gilbert, 20 Ed Dept Rep 174), or that 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; Matter of Levine, 24 id. 172, aff'd sub nom; Capobianco v. Ambach and Bd. of Ed., Glen Cove City School District, 112 AD2d 640).

There is nothing in Education Law '2018 which governs the submission of nominating petitions for school board positions, that specifies the earliest date upon which signatures may be collected on nominating petitions, or that prohibits collection of such signatures prior to posting of the notice of the annual meeting pursuant to Education Law '2004. Respondents Baumel and Miras obtained their first signatures on March 6, 1992 and respondent Umbrino obtained her first signatures on February 11, 1992. Upon the record before me, and absent any express statutory provision to the contrary, I find nothing unreasonable in the action of respondent board of education in allowing signatures to nominating petitions to be obtained prior to the posting of the notice. There is nothing in the record to indicate that the respondent board candidates were given an unfair advantage over petitioners or other candidates in obtaining signatures to their nominating petitions. The record indicates that in early February 1992 respondent board, at its discretion, availed optional nominating petition forms to the public and that the district clerk provided petitioner Leman with such form on February 5, 1992. While petitioner Roujansky did not obtain any petition form from the district clerk, it appears that he used a duplicate of the district's form that he obtained elsewhere. There is nothing in the record indicating that petitioners or other candidates were instructed not to obtain signatures until after the posting of the notice of the annual meeting. Furthermore, even though petitioners waited until after the posting of such notice, they were still able to collect the required number of signatures to be placed as candidates on the ballot.

Petitioners also allege that respondent board of education improperly rejected three of the four propositions they had submitted for inclusion on the ballot. Education Law '2035(2) provides, in part, that "... any proposition may be rejected by the trustees or board of education if the purpose of the proposition is not within the power of the voters..." One of the propositions would require the board of education to rescind a previous resolution of December 16, 1991 which increased the salary of the school superintendent. Respondent board properly rejected this proposition as not within the power of the voters. Education Law '1711(3) specifically provides that the superintendent's salary is to be fixed by the board of education.

Another proposition would require the board to dismiss all teachers at the conclusion of the 1991-92 school year and hire and rehire teachers at salaries not to exceed $60,000 a year for fiscal year 1992-93. This proposition was also properly rejected by respondent board as beyond the power of the voters. Education Law '1709(16) provides that boards of education shall have the power and duty to contract with and employ teachers, and Education Law '2023 makes teachers' salaries ordinary contingent expenses not subject to voter approval. Furthermore, the employment of tenured teachers may not be terminated except pursuant to Education Law '3020-a. Petitioners' proposition would directly infringe upon the board of education's power to contract with and employ teachers, as well as violate Education Law ''2023 and 3020-a.

The final proposition rejected by respondent board would authorize an additional sum of $30,000 in the district budget for the 1992-1993 school year for a study to determine the feasibility of consolidating the school district with neighboring districts. The commissioning of a feasibility study on consolidation by means of a proposition is not within the powers of the voters enumerated in Education Law '2021 or elsewhere in the Education Law. Rather, it is a matter within the discretion of the board of education, which is given authority to determine the need for a reorganization study in the first instance and to apply, pursuant to Education Law '3602(14)(h), for an efficiency study grant to support such a study. I therefore do not find respondent board's refusal to put such proposition on the ballot unreasonable.

THE APPEAL IS DISMISSED.

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