Appeal of EDWARD H. CIFFONE from action of the Board of Education of the Yorktown Central School District, Dr. Gordon Bruno, Superintendent, and Regina M. Pitruzzello, District Clerk, regarding a bond vote.

Appeal of EDWARD H. CIFFONE, on behalf of school district voters, from action of the Board of Education of the Yorktown Central School District, Dr. Gordon Bruno, Superintendent, and Regina M. Pitruzzello, District Clerk, regarding a bond vote.

Appeal of GILBERT KAUFMANN, from action of the Board of Education of the Yorktown Central School District, Dr. Gordon Bruno, Superintendent, and Regina M. Pitruzzello, District Clerk, regarding a bond vote.

Appeal of GILBERT KAUFMANN, on behalf of school district voters, from action of the Board of Education of the Yorktown Central School District, Dr. Gordon Bruno, Superintendent, and Regina M. Pitruzzello, District Clerk, regarding a bond vote.

Decision No. 15,199

(April 6, 2005)

Shaw & Perelson, LLP, attorneys for respondents, Margo L. May and Jillian E. Cass, Esqs., of counsel

MILLS, Commissioner.--Petitioners Ciffone and Kaufmann each filed two appeals, individually and on behalf of district voters, seeking an order setting aside the results of a special district meeting held by the Board of Education of the Yorktown Central School District ("respondent board or board") on October 13, 2004. Because the appeals raise common issues of law and fact, they are consolidated for decision.  The appeals must be dismissed.

At the special district meeting, district voters approved funding for an addition to Yorktown High School, and renovation of the High School library for use as administrative offices, by a vote of 651 to 337. These appeals ensued. Petitioners allege that the published notice of the meeting was defective, and that the vote must therefore be set aside. Petitioners' requests for interim relief were denied on October 27, 2004.

Respondents contend that the petitions fail to demonstrate a clear legal right to the relief requested. Respondents deny that the notice is defective and assert that even if there was an error in the notice, it was de minimus and did not affect the legality of the notice or the outcome of the vote.

I must first address several procedural issues, starting with petitioners' replies. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of General, 43 id. 146, Decision No. 14,948). Therefore, while I have reviewed petitioners' replies, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answers.

In their respective replies, petitioners ask to join as a respondent the district's bond counsel who prepared the notice. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of M.C., 43 Ed Dept Rep 276, Decision No. 14,993). I do not find that bond counsel's rights would be adversely affected by my determination and I therefore decline to join bond counsel as a party to these appeals.

In two of the four appeals, petitioners attempt to appeal on behalf of "school district voters." An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR �275.2; Appeal of Ockimey, 44 Ed Dept Rep 169, Decision No. 15,136; Appeal of Garmaeva, 43 id. 253, Decision No. 14,988; Appeal of Colety, et al., 42 id. 162, Decision No. 14,806). Petitioners must set forth the number of individuals they seek to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Recore, 42 Ed Dept Rep 283, Decision No. 14,856; Appeal of Colety, et al., supra). Here, petitioners have not set forth the number of prospective members of the class, but merely assert that "some 8000 individuals are registered to vote" in the district. Nor have they demonstrated that all the potential class members have the same interests or claims. In any event, a determination as to the individual petitioners will resolve the issue concerning the vote. Thus, there is no need for class certification (Appeal of Bluemke, et al., 39 Ed Dept Rep 447, Decision No. 14,281). Accordingly, class certification is denied.

Turning to the merits, notice of the special district meeting was published four times within the seven weeks prior to the vote on October 13, 2004. The notice appeared, in pertinent part:

NOTICE OF SPECIAL DISTRICT MEETING

YORKTOWN CENTRAL SCHOOL DISTRICT,IN THE COUNTY OF WESTCHESTER, NEW YORK

NOTICE IS HEREBY GIVEN that pursuant to a resolution of the Board of Education of the Yorktown Central School District, in the County of Westchester, New York, adopted on August 12, 2004, a Special District Meeting of the qualified voters of said School District will be held on

Wednesday, October 13, 2004

from 7:00 o'clock A.M. to 9:00 o'clock P.M. (Prevailing Time) in the Mohansic Elementary School, 704 Locksley Road, Yorktown Heights, New York for the purpose of voting upon the following Bond Proposition: . . .

The substantive part of the notice contained five separately spaced paragraphs, (a)-(e), describing the bond proposition, followed by one longer paragraph containing the exact language that would appear on the ballot labels to be inserted in the voting machines.

Petitioners object to this sentence preceding the ballot language:

Such Bond Proposition shall appear on the ballot labels to be inserted in the voting machines used for voting at said Annual District Meeting and Election in substantially the following form: (emphasis added).

They assert that the words "said Annual District Meeting and Election" are a critical part of the legal notice and clearly state that the bond proposition would occur at an annual district meeting. They argue, therefore, that the legal notice referred to the next annual meeting in May 2005, not the special meeting on October 13, 2004. Petitioners contend that the entire bond proposition must be declared null and void because it was erroneously placed before the voters at the special district meeting on October 13, 2004, instead of at an annual district meeting and election, as announced in the published legal notice. They also argue that many voters were misled and confused and presumably did not vote on October 13, 2004.

Respondents admit that the highlighted language appeared in the notice but assert that the language may be construed in two ways: that the bond proposition would appear on the ballot labels in the voting machines that had been used for the annual district meeting and election on May 18, 2004; or, that the use of the phrase "said Annual District Meeting and Election" was in error and should have read "Special District Meeting." Respondents contend that, to the extent the language was in error, the error was deminimus because it had no impact on the meaning of the notice. Respondents also assert that they received no questions or complaints concerning the wording or the date of the bond vote, that literature distributed to district residents contained the correct date, and that the total number of voters was substantially the same as the number who voted at the previous special district meeting in March 2004 at which the bond proposition was defeated. Respondents state that petitioners fail to allege that any voters were actually confused or misled by the notice.

Petitioners have failed to meet the burden of establishing the facts upon which they seek relief (8 NYCRR �275.10; Appeal of Wierzchowski, 39 Ed Dept Rep 682, Decision No. 14,348). The date of October 13, 2004, is clearly highlighted in bold letters near the center top of the notice and "October 2004" appears five more times in the body of the notice. I find that the date of the Special Meeting, October 13, 2004, is obvious when read in the context of the notice as a whole.

To the extent that the language at issue was erroneous, it is neither critical nor significant and does not warrant setting aside the election (see Education Law �2010; Matter of Qualified Electors of CSD No. 6, Towns of Worcester, Westford, Decatur and Maryland, Otsego Cty, 72 St. Dept. 13, Decision No. 5,561).

THE APPEALS ARE DISMISSED.

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