* Subsequent History: Matter of Murphy v Elia; Supreme Court, Albany County; Judgment dismissed petition to review; May 25, 2016. *

Appeal of KEVIN C. MURPHY from actions of the Board of Education of the Jamesville-DeWitt Central School District and the DeWitt Community Library Association regarding a library proposition.

Decision No. 16,765

(June 4, 2015)

Bond, Schoeneck & King, PLLC, attorneys for respondent school board, John A. Miller, Esq., of counsel

Whiteman Osterman & Hanna, LLP, attorneys for respondent library, Ellen M. Bach, Esq. of counsel

BERLIN, Acting Commissioner.--Petitioner challenges action of the Board of Education of the Jamesville-DeWitt Central School District (“respondent board”) approving the placement of library funding propositions before district voters and appropriating funds for the Dewitt Community Library Association[1] (“respondent library”). The appeal must be dismissed.

Respondent library is a free association library located substantially within the Jamesville-DeWitt Central School District.  On March 26, 2012, respondent board approved a request by respondent library,[2] to place the following proposition on the ballot at its annual district meeting in May:

Shall the sum of $1,256,652 Dollars ($) be raised by annual levy of a tax upon the taxable property within the Jamesville-DeWitt Central School district for the purpose of funding the DeWitt Community Library.

Petitioner initiated this appeal challenging respondent board’s action and requesting interim relief prohibiting respondent board from placing the library’s funding proposition on the May ballot, as well as precluding the collection of taxes pursuant to any prior such votes.  Petitioner’s request for interim relief was denied.  Voters subsequently approved the library funding proposition at the district’s annual meeting.[3] 

Petitioner challenges the propriety of respondent board’s determination to place the library funding proposition before voters on several grounds.  He contends that the Education Law does not authorize a board of education to place before district voters a proposition to fund a free association library at the request of the library or to collect taxes for such library.  He also claims that respondent board’s action violates the New York State Constitution. 

Petitioner acknowledges a prior Commissioner’s decision in Appeal of the Board of Trustees of the Earlville Free Library, 30 Ed Dept Rep 172, Decision No. 12,423 (hereafter, “Earlville”) which, in 1990, held that a board of education must place such a funding proposition before the voters upon request of a free association library.  However, petitioner maintains that Earlville was decided incorrectly or, alternatively, no longer represents current law.  Petitioner claims that Earlville should be overturned based on Article VIII, Section 3 of the New York State Constitution’s limitation on the authority to impose taxes; the New York State Court of Appeals’ decision in Greater Poughkeepsie Lib. Dist. v. Town of Poughkeepsie, 81 NY2d 574 (1993) (“Poughkeepsie”); and legislative amendments to the Education Law since 1990 that petitioner contends “repudiate and moot” the determination in Earlville. 

Petitioner also raises constitutional claims that, based on the parameters of respondent library’s service area, there are individuals residing within the Jamesville-DeWitt school district who are subject to taxation but are not eligible to sit on respondent library’s board of trustees, access the library, or vote for library trustees.  Conversely, petitioner claims that some individuals may serve on respondent library’s board and access library services, but do not pay the supporting tax because they live outside the Jamesville–DeWitt school district.  Petitioner asserts that this situation is contrary to the principles of due process and equal protection, thus rendering respondent board’s action impermissible. 

Petitioner requests nullification of respondent board’s March 26, 2012 action – as well as all prior similar actions - approving the placement of a free association library funding proposition before district voters at the request of respondent library.  Petitioner also asks that I void all votes by district residents to approve such funding propositions, preclude any similar future action by respondent board, and direct respondent board not to collect any tax dollars in support of respondent library. 

Respondent library[4] asserts that the appeal must be dismissed for lack of notice and, in part, as untimely.  Respondent library contends that I lack jurisdiction over petitioner’s constitutional claims.  Respondent library also contends that petitioner lacks standing to assert claims of voter disenfranchisement or lack of representation on behalf of persons outside either the school district or the library service area.  Finally, respondent library maintains that petitioner’s request for an order enjoining future action by respondents board and library constitutes an impermissible request for an advisory opinion.

 On the merits, respondent library asserts that respondent board’s action is permissible under Education Law §259(1)(a); inter alia, that the statute allows free association libraries to seek funding from school district voters; and that Earlville remains a correct interpretation of Education Law §259.

I will first address the procedural issues.  Section 275.11(a) of the Commissioner’s regulations requires that a petition initiating an appeal pursuant to Education Law §310 must contain a “Notice” with the petition.  Respondent library asserts that the petition served upon it did not contain a “Notice of Petition” but, instead contained a “Notice of Appeal.”  I have compared the notice language that is required by §275.11(a) of the Commissioner’s regulations to the language included in the “Notice of Appeal” served upon respondent library with the verified petition.  The notice served upon respondent library contains all of the language and provisions required by regulation, albeit entitled “Notice of Appeal.”  The title of the document is not prescribed by regulation.  Therefore, I decline to dismiss the appeal for lack of notice.  

However, the appeal is untimely, in part.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioner challenges respondent board’s March 26, 2012 approval of respondent library’s request to place a funding proposition before district voters, as well as all prior similar actions by respondent board.  Petitioner initiated this appeal by service of the petition on respondents on April 16, 2012.  Therefore, to the extent that petitioner seeks review of matters occurring before respondent board’s March 26, 2012[5] approval of the library’s request to place a funding  proposition on the May 2012 ballot, the appeal is untimely. 

The appeal must also be dismissed, in part, for lack of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Petitioner purports to raise constitutional claims, alleging violations of due process and equal protection on behalf of individuals who reside outside of either the school district boundary or library service area.  Respondent library asserts that petitioner’s residence is not located outside of its service area or outside of the school district.  Petitioner submits no reply or other evidence to the contrary.  As petitioner resides within both areas and, thus, is eligible to serve on the library’s board of trustees, vote on library funding propositions, and access library services, petitioner is not aggrieved as to his constitutional due process and equal protection claims.  Petitioner lacks standing to assert claims of voter disenfranchisement or lack of representation on behalf of other individuals.  Moreover, in addition to lacking standing on those claims, petitioner’s constitutional due process and equal protection claims may not, for the reasons set forth below, be maintained in this appeal. 

Petitioner states that he is not directly challenging the constitutionality of any portion of the Education Law, but merely seeks reconsideration of Earlville in light of the Court of Appeals’ decision in Poughkeepsie (interpreting the State constitution’s limitation on taxation).  However, petitioner does request that, should I decline to vacate Earlville and find that it remains a correct interpretation of Education Law §259, I should find that statute unconstitutional in light of Article VIII, Section 3 of the New York State Constitution.  An appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).  Therefore, petitioner’s claims pertaining to the propriety of respondent board’s actions under Article VIII, Section 3 of the State Constitution or the constitutionality of any provision of the Education Law are dismissed, as are as his above-discussed due process and equal protection claims. 

Petitioner’s claim relating to the 1993 Court of Appeals’ decision in Poughkeepsie must similarly be dismissed.  Petitioner contends that Poughkeepsie – which addressed constitutional restrictions on the delegation of taxing authority – requires reversal of Earlville and nullification of respondent board’s placement of free association library funding propositions before district voters.  However, Poughkeepsie involved circumstances distinguishable from those presented here.  There, trustees of a special library district determined the library budget and the Town of Poughkeepsie was required to levy a tax therefor, and the statute at issue did not provide for submission of the library appropriation to the voters.  In Poughkeepsie, the Court found an unconstitutional delegation of taxing authority based on a lack of legislative control or voter oversight.  In contrast, this appeal involves a challenge to the submission of library appropriations to school district voters.  Because the facts of that case are distinguishable, it is not controlling here.  As petitioner is merely advancing his interpretation of Poughkeepsie and constitutional taxing provisions to the facts of this case, he raises novel constitutional questions that the Commissioner of Education must decline to decide (see Appeals of Students with Disabilities, 33 Ed Dept Rep 276, Decision No. 13,047).

Petitioner’s remaining claims arise under the Education Law.  I note that the 2012-2013 fiscal year during which taxes were levied to support the challenged funding proposition has ended and, thus, the matter is academic.  However, such claims are also dismissed on the merits.  The parties’ dispute regarding respondent board’s authority to place a free association library funding proposition before district voters and, if approved, raise taxes therefor turns solely on interpretation of statute.  Education Law §259(1) provides, in pertinent part:

(a)Taxes, in addition to those otherwise authorized, may be voted for library purposes by any authority named in section two hundred fifty-five of this part and shall, unless otherwise directed by such vote, be considered as annual appropriations therefor until changed by further vote and shall be levied and collected yearly, or as directed, as are other general taxes.  In the case of a school district the appropriation for library purposes shall be submitted to the voters of the district as proposed by the library board of trustees in a separate resolution and shall not be submitted as a part of the appropriation of the necessary funds to meet the estimated expenditures of the school district.  All moneys received from taxes or other public sources for library purposes shall be kept as a separate library fund by the treasurer of the municipality or district making the appropriation and shall be expended only under direction of the library trustees on properly authenticated vouchers, except that money received from taxes and other public sources for the support of a public library or a free association library or a cooperative library system shall be paid over to the treasurer of such library or cooperative library system upon the written demand of its trustees....

(b)(1) Except as provided in subparagraph two of this paragraph, whenever qualified voters of a municipality ... shall so petition and the library board of trustees shall endorse, the question of establishing or increasing the amount of funding of the annual contribution for the operating budget of a registered public or free association library by such municipality to a sum specified in said petition, shall be voted on at the next general election of such municipality....

(2) Solely for the purposes of this paragraph, the term “municipality” shall:

(i) not include a city with a population of one million or more,

(ii) mean only a county when the public libraries located in such county are members of a federated public library system whose central library is located in a city of more than three hundred thousand inhabitants.

Petitioner argues that the amendment of Education Law §259(1) to add subdivision (b), and further amendments thereto, clarified statutory intent that subdivision (a) did not authorize boards of education to levy taxes in support of free association libraries.  I disagree.

As stated in Earlville, a school district is among those entities enumerated in Education Law §255 and, thus, is authorized to vote taxes “for library purposes” pursuant to Education Law §259(1)(a).  Earlville noted that, “although only those entities specifically enumerated in Education Law §255 may levy a tax for library purposes under §259(1)(a) [citations omitted], there is no restriction in §259(1) regarding the type of library for which such taxes may be levied.”  In fact, Education Law §259(1)(a) includes a specific reference to moneys received from taxes and other public sources for the support of a free association library, as well as a public library or cooperative library system.  Thus, the plain language of this statute clearly contemplates that a school district may levy taxes for a free association library.  Moreover, a school district’s authority to levy taxes to support a free association library was recognized as early as 1967 in Matter of Locust Val. Lib. v. Board of Educ. of Cent. School Dist. No. 3 of Town of Oyster Bay (54 Misc 2d 315).

Additional support for such authority is found in Real Property Tax Law (“RPTL”) §1322(1).  That provision requires that the amount levied for library purposes be set forth on a separate line on taxpayers’ bills “where the school district is required to levy and collect taxes for free association libraries....”  The Education Law includes only two provisions that allow for the levying of a tax on behalf of a free association library:  (1) Education Law §259(1)(a); and (2) Education Law §259(1)(b)(1).  The latter, by its own terms, does not apply to school districts, so the only application the cited language in RPTL §1322(1) could have would arise from Education Law §259(1)(a).  Otherwise, RPTL §1322(1) would be rendered meaningless.

Additionally, in 2007, when Education Law §259(1)(a) was amended to require school districts to submit propositions for library funding to voters as proposed by the library board of trustees, memoranda in support of the amendment from the Division of Budget[6] and the State Education Department[7] that the bill gave trustees of school district libraries or free association libraries supported by schools control over submission of a funding proposition to district voters. 

Although petitioner relies on certain legislative history to support his position, he ignores the plain statutory language set forth above and, instead, relies largely on the legislative history of amendments to paragraph (b) of subdivision (1) of Education Law §259 rather than paragraph (a) of subdivision (1).  By its terms, paragraph (b) applies only to a “municipality,” while paragraph (a) applies to a municipality or school district.  The sponsor’s memorandum states generally that, prior to the addition of Education Law §259(1)(b)(1), voters were unable to vote directly on a proposition for library funding.  While this was true with respect to municipalities – the situation the legislation was remedying – the statement ignored the plain statutory language pertaining to school districts, as well as the decisions in Locust Valley and Earlville, and a 1981 Opinion of the State Comptroller (Opinion No. 81-167).  Moreover, the statement in the legislative memorandum in support merely acknowledges that the voting mechanism in Education Law §259(1)(a) applies to school district public libraries.  Petitioner concludes from this that the sponsor was stating that the provision affirmatively did not apply to free association libraries; in fact, there is nothing clearly set forth in legislative history stating that Education Law §259(1)(a) does not authorize a school district to vote to support and to levy taxes for a free association library.  The sponsor’s failure to note such authority is likely oversight, given the plain language of the pertinent statutes discussed above and prior decisional law.

After careful consideration of the record evidence, I conclude that respondent board acted within its authority when it approved a funding proposition requested by respondent library and placed it before district voters. 

In light of the above disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE