Appeal of THERESA MCNAMEE from action of the Board of Education of the Connetquot Central School District regarding a proposition.

Decision No. 17,103

(June 20, 2017) 

Guercio & Guercio, LLP, attorneys for respondent, Lisa L. Hutchinson, Esq., of counsel

ELIA, Commissioner.--etitioner challenges the refusal by the Board of Education of the Connetquot Central School District (“board” or “respondent”) to place a proposition before the voters at the annual meeting.  The appeal must be dismissed.

Petitioner is a resident in respondent’s district.  According to respondent, at its February 23, 2016 meeting, petitioner requested information from the board regarding the cost of a special election in the event that a proposition was placed on the ballot for the May 17, 2016 annual meeting, to increase the number of board members from five to seven (the “proposition”).  The district clerk provided information to petitioner that the cost would be “about $23,000.”  Subsequently, at its March 8, 2016 meeting, the district clerk provided an updated projected cost of approximately $45,000.  

By letter dated March 18, 2016, petitioner submitted to the board a petition containing 191 signatures of district voters in support having the proposition placed on the May 17, 2016 ballot.

At its March 22, 2016 meeting, respondent rejected the petition, by a vote of three to two.  According to respondent, the board members who voted against placing the proposition on the ballot did so because the proposition required an expenditure of money but failed to specify the amount for which voter approval was sought.  This appeal ensued. 

Petitioner asserts that board members Robert Grable, Nicholas Ferraioli, and Craig Amarando, who voted against placing the proposition on the ballot, acted arbitrarily and willfully and were wholly without a rational or reasonable basis in voting against placing the proposition on the May 17, 2016 ballot.  Petitioner requests that the vote be “vacated” and the proposition be placed on the ballot on May 17, 2016.  Her request for interim relief was denied on April 13, 2016.

Respondent asserts that its actions were rationally based and not arbitrary and capricious.

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  As relief, petitioner asks only that I grant her request to have the proposition appear on the ballot for the May 17, 2016 annual meeting.  Since the May 17, 2016 meeting has already occurred, the relief sought cannot be granted (see Appeal of Wait, 51 Ed Dept Rep, Decision No. 16,353).

Although the appeal is dismissed as moot, for the benefit of the parties, I will discuss the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

With regard to the submission of propositions, Education Law §2035(2) provides that “any proposition may be rejected by the ... board of education if the purpose of the proposition is not within the power of the voters, or where the expenditure of moneys is required by the proposition, if the proposition fails to include the necessary specific appropriation” (see Appeal of Berhalter, et al., 48 Ed Dept Rep 446, Decision No. 15,910; Appeal of Riordan, 27 id. 182, Decision No. 11,913).

In addition, Board Policy #2120.3, which is consistent with Education Law §2035(2), provides as follows:

Any qualified voter may have a proposition placed on the ballot subject to the following requirements.  The proposition or amendment:

1.must be printed or typed;

2.must be directed to the clerk of the district;

3.must be submitted to the clerk not less than sixty days preceding date of annual meeting; and

4.must be signed by at least the number of qualified voters of the district representing five (5%) percent of the number of voters who voted in the previous annual election.

However, the school board will not entertain any petition to place before the voters:

1.that has a purpose of which is not within the power of the voters to determine;

2.that is contrary to law;

3.where the expenditure of moneys is required by the proposition, if the proposition fails to include the necessary specific appropriation;

4.whose substance has previously been held by the Commissioner of Education to be inappropriate for placement on the ballot; or

5.where other valid reason exists for excluding the proposition from the ballot.

Petitioner asserts that the petition was submitted in accordance with Policy #2120.3.  Respondent does not dispute that the petition included the minimum required number of signatures and was submitted in a timely fashion to the district clerk.  However, respondent contends that the proposition required an expenditure of money but failed to specify the amount for which voter approval was sought.

Pursuant to Education Law §§1703, 1804(1) and (3), and 2105(9), a board of education of a union free or central school district, upon submission of a proper petition containing an adequate number of voter signatures, is authorized to submit a proposition to the voters at the annual meeting to increase or decrease the number of board members, within the limits set forth in such statutes (Appeal of Rockwell, 51 Ed Dept Rep, Decision No. 16,355; Appeal of Swanson, 29 id. 503, Decision No. 12,365; Appeal of Martin, 29 id. 148, Decision No. 12,248).  Following voter authorization of a proposition to increase the number of board members, Education Law §1703(3) requires that a special district meeting be called for the election of such additional board members.  The special meeting “shall be called by the board and be held not less than thirty nor more than sixty days following the annual meeting at which the number was increased...” (Education Law §1703[3]).  

Respondent asserts that calling a special district meeting would require an expenditure of money, and therefore, it refused to place the proposition on the ballot because the petition failed to specify the amount that needed to be appropriated for such expenditures.  The record indicates that the petition signed by the voters did not contain an expenditure amount, even though respondent had provided petitioner with estimates of the cost.  Rather, it reads as follows:

BY SIGNING THIS PETITION, I SUPPORT THE PROPOSITION TO HAVE THE BOARD OF EDUCATION CHANGED FROM FIVE ELECTED MEMBERS TO SEVEN ELECTED MEMBERS.

The Connetquot Board of Education is a five (5) member board elected by district residents.  BE IT RESOLVED, commencing as soon as possible, that the Board of Education be a seven (7) member board elected by district residents.

Petitioner asserts in her reply that, after receiving the revised $45,000 estimate on March 8, 2016, there was not enough time to rewrite the petition and obtain the requisite 135 signatures before the March 18, 2016 deadline to submit the petition to the district clerk.  Additionally, petitioner claims that she did not have sufficient information and resources to verify the $45,000 estimate, and in any event, the “cost of a special election would only be realized if the voters of the district approved the increase.”  Finally, petitioner claims that the board members who voted against the proposition did so not because of the failure of the petition to include the expenditure, but because, as board member Ferraioli apparently stated, “we don’t want to spend $50,000.” 

I note that the instant proposition is submitted pursuant to Education Law §§1703, 1804(1) and (3), which require that a special district meeting be called for the election of such additional board members (Education Law §1703[3]).  Respondent cites no prior Commissioner’s decisions or judicial decisions holding that a proposition submitted pursuant to Education Law §§1703, 1804(1) and (3) must include an appropriation for the costs of holding a special district meeting.  However, the language authorizing boards of education to reject propositions which require the expenditure of funds and do not include the necessary appropriation was added to Education Law §2035(2) by Chapter 423 of the Laws of 1976.  The Memorandum in Support of said legislation explains that the language on appropriations was added to address situations in which the proposition cannot be implemented without an appropriation.  A proposition submitted pursuant to Education Law §§1703, 1804(1) and (3) cannot be implemented without an appropriation for the costs of holding a special district meeting as required by Education Law §1703(3).[1]  

Although in Matter of DeGioia, 17 Ed Dept Rep 451, Decision No. 9,696, the Commissioner ordered a school district to submit to the voters a proposition to increase the number of board seats and did not specifically order that the proposition include an appropriation for the costs of a special district meeting, there is no indication that failure to include an appropriation pursuant to Education Law §2035(2) was raised in that appeal and the Commissioner’s decision did not squarely address the issue.

The record here indicates that, on March 8, 2016, petitioner received the updated expenditure amount of $45,000 with supporting documentation.  I find that petitioner had sufficient time prior to the March 18 deadline to revise the petition and obtain the requisite number of signatures in order to comply with Policy #2120.3.  Based on my review of the record, I agree with petitioner that board member Ferraioli’s statements at the March 22, 2016 board meeting indicate that the reason respondent voted to reject the petition was concern about the cost of the proposition, and not petitioner’s failure to include an appropriation in the proposition.  Regardless, respondent would have been authorized to reject the proposition for failure to include an appropriation based upon Board Policy #2120.3 and Education Law §2035(2).

THE APPEAL IS DISMISSED.

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