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Decision No. 15,377

Appeal of GLEN W. JOHNSON from action of the Board of Education of the Yorktown Central School District regarding board procedures.

Decision No. 15,377

(March 8, 2006)

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the procedure by which the Board of Education of the Yorktown Central School District ("respondent") rejected two voter petitions. The appeal must be dismissed.

On March 17, 2005, petitioner and another district resident delivered to the superintendent's secretary two voter-initiated petitions requesting that respondent place two propositions on the ballot at the district's May 17, 2005 annual election. One proposition sought to add a policy to the district's Policy Manual regarding public comment periods at board meetings, and the other sought to build additional classrooms at two district elementary schools for a full-day kindergarten program and to authorize respondent to sell bonds up to $5 million for the project (seealsoAppeals of Ciffone and Kaufmann, 45 Ed Dept Rep ___, Decision No. 15,376). According to petitioner, on March 18, 2005 he confirmed with the district clerk that the petitions were received and that they contained the requisite number of signatures.

On March 21, 2005, respondent met in public session and then adjourned into executive session. According to petitioner, no announcement was made at the time of adjournment that the petitions and propositions would be discussed in executive session. Although he admits that he was not present at the executive session, petitioner alleges that a written document regarding the propositions was distributed to board members and a discussion ensued regarding their substance. Following the resumption of the public portion of the meeting, a motion resolving to reject the petitions passed by a vote of five to one. This appeal ensued. Petitioner's request for interim relief was denied on May 11, 2005.

Petitioner contends that the propositions conform to respondent's Policy 1050.1 and therefore respondent improperly rejected the petitions when it declined to place the propositions on the ballot. Petitioner asserts that a clear violation of the Open Meetings Law occurred because the decision not to place the propositions on the May 17, 2005 ballot was a direct result of improperly disseminated information discussed during the executive session. He also asserts that his First Amendment right under the Constitution has been compromised, and his requests for information under the Freedom of Information Law ("FOIL") have not been met. He requests that one or both of the propositions be placed on the May 17, 2005 ballot. He also seeks clarification or recommendations regarding voter-initiated propositions.

Respondent asserts that the appeal is moot. Respondent further denies that it violated the Open Meetings Law, and asserts that the Commissioner lacks jurisdiction over violations of the Open Meetings Law and Constitutional issues. Respondent contends that it properly rejected the petitions as a result of discussion and deliberation in an open meeting following the executive session, and because the purposes of the respective propositions were matters within respondent's discretion.

An appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a regulation (Appeal of Murray, 43 Ed Dept Rep 400, Decision No. 15,031; Appeals of American Quality Beverages, LLC, et al., 42 id. 144, Decision No. 14,804; Appeal of Finkel, 41 id. 74, Decision No. 14,619). A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeals of American Quality Beverages, LLC, et al., 42 Ed Dept Rep 144, Decision No. 14,804). Accordingly, I have no jurisdiction over petitioner's First Amendment claim.

Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Milazzo, 43 Ed Dept Rep 294, Decision No. 14,999; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876; Appeal of Rowe, 41 id. 189, Decision No. 14,660). Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

The gravamen of the petition concerns respondent's use of an executive session. Public Officer's Law �107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Stolbach, 43 Ed Dept Rep 218, Decision No. 14,977; Appeal of Taber, 42 id. 251, Decision No. 14,843; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785). Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

To the extent that the petition requests that the propositions be placed on the May 17, 2005 ballot, the appeal must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). The election has taken place. Accordingly, the matter is moot.

To the extent petitioner seeks recommendations regarding voter-initiated propositions, it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law �310 (Appeal of Taber, 42 Ed Dept Rep 251, Decision No. 14,843; Appeal of a Student with a Disability, 42 id. 111, Decision No. 14,791; Appeal of Hillhouse, 41 id. 385, Decision No. 14,720).

THE APPEAL IS DISMISSED.

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