Appeal of MARY PETITE YOO from actions of the Board of Education of the Bronxville Union Free School District and David Quattrone as superintendent of schools, regarding a school construction project and authorization of a bond resolution.

Decision No. 17,293

(December 21, 2017)

Ingerman Smith, L.L.P., attorneys for respondents, Gus Mountanos, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from various actions of the Board of Education of the Bronxville Union Free School District (“respondent board” or “the board”) and David Quattrone, its superintendent, relating to the calling of a special district meeting for a vote authorizing a school construction project and approving a bond resolution relating thereto.  The appeal must be dismissed.

In 2011, respondent board adopted a new Building Conditions Survey and Five-Year Facilities Plan that identified the need to renovate middle school science labs and the auditorium.  Thereafter, respondent began the protracted process of review of plans and methods of financing that led to the capital improvement project, bond resolution and bond referendum at issue in this appeal.  At its February 17, 2011 meeting, respondent accepted a donation of $125,000 from the Bronxville School Foundation, Inc. (“the Foundation”) for restoration and renovation of the Proscenium of the middle school auditorium, a project related to, but distinct from, the auditorium project that is the subject of this appeal. This earlier project was later placed on hold and, at respondent’s January 19, 2012 meeting, Kaeyer, Garment and Davidson (“KG&D Architects”), the architectural firm that was retained by respondent, presented revised plans (schematic designs) for a larger auditorium renovation project at an estimated cost of $7,487,618. At respondent’s April 19, 2012 meeting, respondent voted to accept an $850,000 donation from the Foundation for the auditorium renovation project that was subject to certain specified conditions.  Those conditions, presented in a letter from the Foundation, were:

1.that respondent adopt a bond resolution no later than September 30, 2012 in support of the auditorium project and solicit bids by no later than September 30, 2013;

2.that the project be “substantially based on the schematic designs” presented to the Foundation and at roughly the total cost of $7.5 million;

3.that any and all other required approvals must be pursued “in a timely fashion”;

4.that funds contributed by the Foundation “shall not be used for additional, interim planning efforts or other purposes prior to actual construction being underway” (with a provision for a limited exception by the Foundation in consultation with the Board);

5.that respondent adopt a resolution to the effect that in the event respondent board determines to cancel or substantially delay the project, the grant is canceled and all unused disbursed funds must be returned to the Foundation; and

6.that “the funding elements described in the second paragraph of the Foundation’s letter, namely district borrowings in the financial markets, cash from reserve funds, private donations, funds raised by the PTA and funds contributed by the Foundation, sufficient to fully fund the auditorium project must all be secured prior to Foundation funds being disbursed.

At its May 3, 2012 meeting, respondent discussed a capital improvement project at a total cost of $10 million, which would include the auditorium renovation project, renovation of the middle school science laboratories and some infrastructure upgrades relating to building maintenance.  

At a special meeting of respondent board held on May 24, 2012, representatives of KG&D Architects presented an in-depth review of the scope and background of the proposed capital projects.  After an extended discussion, including receipt of input from the public, respondent approved a resolution calling for a special district meeting on October 2, 2012 for a vote by the qualified voters to approve a proposition for a capital improvement project, including renovations of the middle school science labs, the school auditorium and “other high priority infrastructure items”  at a cost of up to $10 million, with up to $2 million from funds appropriated from the capital reserve fund, up to $3 million from donations and up to $5 million to be raised by the levy of a tax to be collected in installments and supported by school district obligations.

At its June 14, 2012 meeting, respondent voted to rescind the May 24, 2012 resolution and adopt a new resolution providing for a vote on October 2, 2012 on a proposition to authorize the proposed capital improvement project at a cost of up to $10 million, but with an additional $500,000 to be appropriated from the capital reserve fund and a reduction in the amount to be raised by the levy of a tax and the issuance of district obligations to $4.5 million.

On October 2, 2012, the district voters approved the proposition on the proposed capital improvement project by a substantial margin – 490 for the proposition and 194 against.

Petitioner alleges that in the interim, a group of private individuals called “The Final Act” had engaged in a fund-raising effort to support the auditorium project.  On May 7, 2012, The Final Act sent a letter to community members to solicit funds for a campaign to raise $1.3 million to support the auditorium project.  Petitioner alleges that as of May 7, 2012, The Final Act had not been authorized by respondent to make a gift to the school district or to solicit funds for such a gift.  Petitioner further alleges that this was in violation of Part 10, Article II of the Bronxville School Policy Manual, which at the time required approval of the board of education to accept a gift to the district and required donors to obtain board approval prior to soliciting funds to support the gift. It appears from the record that at its reorganization meeting on July 11, 2012, respondent adopted a revised Article II on gifts that deleted the requirement that donors obtain board approval prior to solicitation of funds. 

Finally, it appears from the record that at its October 18, 2012 meeting respondent considered a change in its bylaws that would revise its procedures on policy development, review and amendment generally.  There is no indication in the record that any action was taken by respondent on the proposed policy change on October 18, 2012.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 21, 2012.

The petition, which is 29 pages long, is rambling and disjointed and difficult to decipher.  Petitioner appears to contend that respondent improperly moved forward with a bond resolution on an auditorium project that had not been approved by the board.  Petitioner also appears to contend that respondent denied her “civil right of representation through elected representatives” through “the abrogation” of its responsibilities to unelected persons or entities, including its superintendent of schools and private fund raisers, including the PTA, the Foundation and The Final Act.  Petitioner also contends that respondent “improperly allowed itself to be encumbered by the conditions imposed by private fund raisers at the time donations were accepted;” notably the Foundation, including the specific design for the project and the contingent nature of the private funding.  Petitioner argues that in so doing, respondent has improperly allowed unelected persons or entities to dictate district policy.  Petitioner also contends that The Final Act solicited funds without obtaining prior approval of the board of education as required by Part 10, Article II of the Bronxville School Policy Manual and that respondent improperly approved bond resolutions on May 24 and June 14, 2012 that included $1.3 million proposed to be donated by The Final Act.  Petitioner also appears to argue that if respondent approves the changes in district policy discussed on October 18, 2012, it would no longer be clear that district policies have the force of law, though she does not request any specific relief in this regard.  Petitioner seeks an order determining that respondent’s resolutions on May 24 and June 14, 2012 are null and void and that the October 2, 2012 vote on the bond resolution is also null and void. She further seeks a determination as to whether respondent board abrogated its powers and duties of due diligence when it approved expenditures to third parties and a determination as to whether the solicitation by The Final Act from community members or the contribution by The Final Act was authorized by the board.

Respondents contends that the petition should be dismissed as untimely and for failure to join the Foundation and The Final Act as necessary parties.  Respondents contend that petitioner’s claim relating to a proposed change in district policy being considered on October 18, 2012 must be dismissed as premature.  Similarly, respondents contend that petitioner’s claim relating to the solicitation of funds by The Final Act must be dismissed as premature because respondent board had not yet accepted their proposed gift at the time this appeal was commenced.  Respondents further contend that the petition fails to state a claim upon which relief may be granted by seeking to nullify the results of the October 2, 2012 referendum without establishing that the alleged improprieties actually affected the outcome of the vote.  Respondents also contend that in arguing that respondent board was obligated to approve final plans prior to approval of the bond resolution, petitioner is seeking a remedy that is contrary to law because a board of education may not engage an architect to prepare final plans and specifications until after the voters have approved the project.  Respondents further contend that the board properly accepted the conditions in the grant from the Foundation on April 19, 2012 as to decisions relating to the scope of the auditorium project, because it did not abdicate its authority to determine whether or not to offer or continue to offer a particular program, or the manner in which any program was offered.    Respondents also contend that to the extent petitioner looks to the Commissioner to conduct an independent investigation into this matter, the Commissioner does not have authority to do so.  Finally, respondents contend that those portions of the reply which buttress allegations in the petition or add assertions that should have been raised in the petition should not be considered.

I must first address several procedural issues.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Most of petitioner’s claims must be dismissed as untimely.  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).  This appeal was commenced by service of the petition on October 31, 2012.  To the extent petitioner seeks to challenge respondent board’s April 19, 2012 action in accepting the gift from the Foundation with the stated conditions, this appeal was not commenced until more than six months later and is untimely.  To the extent petitioner seeks to annul respondent’s actions on May 24, 2012 and June 14, 2012 to adopt a bond resolution and call for a special district meeting for a vote to approve the capital construction project and approve the issuance of debt, the appeal was not commenced for several months thereafter and is also untimely (see Appeal of Wahl, 56 Ed Dept Rep, Decision No. 17,086).  In both instances, petitioner has provided no excuse for the delay, and such claims must be dismissed as untimely.  However, to the extent petitioner challenges the October 2, 2012 referendum, the appeal was commenced within thirty days of the vote and therefore is timely.

Petitioner’s claims relating to respondent’s consideration on October 18, 2012 of possible amendments to its policies on the development and amendment of district policies generally must be dismissed as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752). Respondent board asserts that it had taken no action on the proposed policy change at the time this appeal was brought, which means there was no action taken by respondent board from which an appeal could be taken.

Similarly, to the extent petitioner is challenging respondent board’s acceptance of a gift from The Final Act, such claim must also be dismissed as premature.  Respondent board indicates that it had not accepted the gift from The Final Act at the time this appeal was brought.[1]

Moreover, petitioner’s claims that the results of the vote on October 2, 2012 should be annulled must also be dismissed for failure to state a claim upon which relief may be granted.  To invalidate the results of a school district election, petitioner must establish not only that irregularities occurred, but also a probability that any irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, affd 26 NY2d 709; Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905), were so pervasive that they vitiated the electoral process (Appeal of Lanzilotta, 48 Ed Dept Rep 428, Decision No. 15,905; Appeal of Georges, 45 id. 453, Decision No. 15,380), or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Levine, 24 Ed Dept Rep 172, Decision No. 11,356, affd sub nom Capobianco v. Ambach, et al., 112 AD2d 640).  It is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results (Appeal of Antaki and Mosman, 47 Ed Dept Rep 228, Decision No. 15,678; judgment granted dismissing petition, Antaki and Mosman v. Mills and Bd. of Educ., Pleasantville UFSD, Sup. Ct., Albany Co., [Platkin, J.], May 30, 2008, n.o.r.; Appeal of Marchesani, 44 id. 460, Decision No. 15,232).  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).

Petitioner has neither alleged nor proven that there were any irregularities in the conduct of the vote.  Petitioner’s only arguments appear to be that The Final Act improperly solicited funds without first obtaining board of education approval and that respondent board has improperly ceded board authority and responsibilities to private donors, so that setting aside the results of the referendum would allow respondent board to review the plans for the auditorium project, exercise due diligence and conduct an appropriate and unencumbered cost/benefit analysis. Petitioner has provided no proof that the controversy over the solicitation of funds by The Final Act or the acceptance by respondent board of the conditions of the Foundation’s donation actually affected the outcome of the vote.  If respondent’s actions in approving the proposition and calling the special district meeting were annulled, annulling the results of the special district meeting would also be an appropriate remedy, but where, as here, those claims have been dismissed as untimely, petitioner must establish an independent ground for setting aside the results of the referendum, which she has not done. In fact, the record reflects that the bond referendum passed by a substantial margin and petitioner has not submitted a single affidavit to support her burden of demonstrating that the election outcome would be different, but for the alleged improprieties. 

While the appeal must be dismissed for the reasons stated above, for the benefit of the parties I will briefly discuss the issue of respondent board’s acceptance of the donation from the Foundation.  The core argument made by petitioner in this appeal is that respondent improperly delegated a portion of its decision-making authority to a private donor.

Respondent has general authority to accept gifts and apply the proceeds according to the instructions of the donor (Education Law §1709[12]; Appeal of Brarens, et. al., 51 Ed Dept Rep, Decision No. 16,317; Appeal of Cook, 32 id. 71, Decision No. 12,762).  Petitioner is correct, however, that while a board of education may accept gifts of money to support specific programs, it may not delegate to a third party its responsibility for determining whether or not to offer such programs or any control over the manner in which they are to be offered (Appeal of Brarens, et. al., 51 Ed Dept Rep, Decision No. 16,317; Appeal of O’Brien, 51 id., Decision No. 16,316, Judgment granted dismissing petition sub nom. O’Brien v. King, et. al., Supreme Ct. Albany County, 7/3/2012, aff’d 112 AD3d 188; Appeal of DeMasi, et. al., 18 id. 320, Decision No. 9,859).

On this record, petitioner has not established that respondent board impermissibly delegated its authority to the Foundation by accepting the conditions of its donation on April 19, 2012.  It appears from the record that respondent retained KG&D Architects to prepare preliminary plans for the auditorium project and that, on January 12, 2012, KG&D Architects presented the preliminary plans to the board with an estimated cost of $7,487,618.  The board minutes for that meeting identify such preliminary plans as “schematic designs”.  The condition that the final project must be “substantially based” on the schematic designs presented to the Foundation and at a project cost of “roughly” $7.5 million, which is the condition on which petitioner focuses therefore serves to identify the project developed on behalf of respondent board that the donor wished to fund.  There is no proof that the Foundation itself proposed schematic designs for the auditorium project or otherwise interjected itself into respondent board’s decision-making and petitioner has not established that the Foundation impermissibly retained control over the auditorium project once the gift was accepted.  The mere fact that acceptance of the gift constrains respondent board’s use of the donated funds to some extent does not establish that respondent board has impermissibly ceded its authority to a third party.

Finally, to the extent that petitioner seeks an investigation into respondents’ conduct an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).

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

THE APPEAL IS DISMISSED.