Appeal of CATHERINE NAPPI from action of the Board of Education of the South Country Central School District regarding a voter proposition.

Decision No. 17,300

(January 2, 2018)

Guercio and Guercio, LLP, attorneys for respondent, Douglas A. Spencer, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from the failure of the Board of Education of the South Country Central School District (“respondent”) to take action to place a voter proposition to reduce the minimum distance for transportation on the ballot at the May 15, 2012 annual district meeting and election.  The appeal must be dismissed.

On February 3, 2012, in anticipation of submitting a voter proposition reducing the minimum mileage limit at which the district provides transportation to zero pursuant to Education Law §§2021(19), 2035(2), and 3635(1), petitioner submitted a Freedom of Information Law (“FOIL”) request for the number of students walking to school, the number of buses required to transport such students and information relating to the cost of providing such transportation.  On or about March 8, 2012, respondent’s assistant superintendent for business advised the district clerk that he had compiled the requested information.  He asserts in his affidavit that, thereafter, he met with petitioner to present her with the requested information, including an estimated cost per bus of $67,740.69 and a total annual cost of $609,665.31 for 9 buses, and advised her that a separate proposition appropriating that amount would result in a tax levy increase in excess of the district’s tax levy limit under Education Law §2023-a and would, therefore require that such proposition, and other propositions for the expenditure of money on the ballot,  be approved by a supermajority of 60% of the votes cast, rather than the typical majority vote of 50% (Education Law §2023-a[6]).  On April 4, 2012, petitioner submitted a proposition to reduce the minimum mileage limit from one-half or one and one-half miles, depending on grade level, to zero for pupils at all grade levels and to provide for an appropriation of $609,665.31 for the cost of such transportation (“the proposition”).

The proposition was submitted to respondent for review at its April 18, 2012 meeting, but no action was taken.  Following receipt of the proposition, respondent’s assistant superintendent for human resources contacted a sampling of voters who were signatories to petition to have the proposition placed on the ballot to inform them that the effect of the proposition would be to subject the district budget to the 60% supermajority vote required under Education Law § 2023-a.  He asserts in an affidavit that 22 named voters that he contacted did not know about its impact on the supermajority requirement, and that at least 13 voters indicated that they wanted their name removed from the petition.  Respondent has also submitted affidavits from voters stating they wish to have their names removed from the petition in light of this information.  Petitioner commenced this appeal on April 27, 2012 to challenge respondent’s failure to act on April 18, 2012.[1]  At its meeting on May 2, 2012, respondent voted to reject the proposition.  Petitioner’s request for interim relief was denied on May 10, 2012.

Petitioner contends that the petition to have the proposition placed on the ballot was valid and that the proposition is within the power of the voters.  Petitioner contends that respondent, by not taking action to confirm its validity, has denied voters their right to vote on said proposition.  The petition seeks an order that the proposition be immediately placed on the ballot and that respondent be reprimanded and fined for failure to make a timely determination on acceptance of her proposition.  In her reply, petitioner for the first time argues that respondent has violated her “right to petition” under the First Amendment of the United States Constitution.  Based on such alleged violation of law, she argues that the five board members who voted to reject the proposition on May 2, 2012 should be removed from office pursuant to Education Law §306.  She further argues in her reply that action should be taken against respondent’s assistant superintendent for human resources and the school district’s attorneys for wilfully violating her right to petition and for unspecified instances of alleged perjury.  She also attempts in her reply to expand her request for relief to include an order for a new district meeting.

Respondent argues that the appeal must be dismissed as moot since petitioner’s request for interim relief was denied, the annual district meeting was held on May 15, 2012 and no further meaningful relief can be granted at this time. Respondent further argues that the petition must be dismissed because the notice of petition, petition and affidavit of verification are not properly endorsed in accordance with 8 NYCRR §275.4, the petition is not verified in accordance with 8 NYCRR §275.5, and petitioner lacks standing to challenge respondent’s decision not to place the proposition on the ballot.  Respondent also argues that petitioner’s reply papers should be rejected because they are not properly endorsed or verified and because they raise new allegations not asserted in the petition and demands relief not originally requested. Respondent further argues that the Commissioner lacks authority to reprimand or fine school board members under Education Law §310.  Respondent further contends that the appeal should be dismissed because petitioner submitted the proposition in bad faith in an effort to usurp respondent’s decision to submit a budget within the statutory tax levy limit.  Respondent further argues that its actions were in all respects appropriate and not arbitrary and capricious and that petitioner has failed to sustain her burden of establishing a clear legal right to the relief she seeks.  Respondent asserts that it properly rejected the proposition, arguing, among other things that: the proposition did not include the language required under Education Law §2023-a(6) to apprise voters that the proposition, in combination with the other propositions on the ballot, would result in the budget exceeding the state tax cap and must be approved by 60% of the qualified voters present and voting; the proposition would cause voter confusion; the petition for the proposition improperly usurps the role of the board of education, which proposed a budget within the district’s tax levy limit; petitioner has submitted almost identical universal busing propositions at almost every annual meeting since 2000 and the voters rejected them; petitioner submitted the proposition in bad faith; and so many signatories to the petition to place the proposition on the ballot have requested that their names be removed the petition no longer contains the number of signatures required under Education Law §2035.

There are several procedural issues that must be addressed.  By application sworn to on July 12, 2012, subsequent to the submission of her reply, petitioner sought permission, pursuant to 8 NYCRR §276.5, to submit an additional pleading, including several exhibits and a response to respondent’s memorandum of law.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). Petitioner seeks to introduce new exhibits and raise new issues relating to respondent’s actions in 2008 on a similar transportation proposition. The remainder of the additional pleading consists of arguments that either repeat arguments raised in petitioner’s reply or could have been raised in the reply. Therefore, I decline to accept petitioner’s additional pleading.

With respect to that part of petitioner’s submission that constitutes a response to respondent’s memorandum of law, I decline to accept it.  Reply memoranda of law may be accepted only with the prior permission of the Commissioner (8 NYCRR §276.4).  Petitioner had an opportunity to submit a memorandum of law but failed to do so.  To the extent that she purports to submit the response as a late memorandum, she has not set forth any basis for her delay and she may not circumvent the timelines for submitting her memorandum of law merely by offering such late submission as a response to respondent’s memorandum.  Accordingly, I have not considered it.

I also deny respondent’s request, pursuant to 8 NYCRR §276.5, to submit two additional affidavits from voters who signed the petition to have the proposition placed on the ballot; these are in addition to ten such affidavits already submitted with respondent’s answer.  Other than making a vague reference to “scheduling conflicts,” respondent offers no acceptable explanation as to why these affidavits could not have been submitted with the answer.

Respondent further challenges the scope of petitioner’s reply.  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.  In this instance, petitioner has impermissibly attempted to add new claims in her reply challenging respondent’s action on May 2, 2012 refusing to place the proposition on the ballot, rather than initiating a new appeal pursuant to Education Law §310 to challenge that action.  The instant petition appeals from respondent’s “lack of action” and seeks an order directing respondent to immediately place the proposition on the ballot and imposing a reprimand and fine for its failure to address the proposition in a timely manner.  Therefore, those portions of the reply raising new claims relating to respondent’s May 2, 2012 action, including petitioner’s constitutional claim and request for removal and/or discipline of school officers or school employees, are not properly before me in this appeal and must be dismissed.

Respondent argues that the appeal must be dismissed because the notice of petition, petition, affidavit of verification and reply do not comply with 8 NYCRR §275.4(a), which requires that all pleadings and papers be endorsed with the name, post office address and telephone number of the submitting party.  Specifically, respondent objects that petitioner has not included her telephone number on her papers and, instead, has substituted her email address.  I decline to dismiss the appeal on this basis.  When a petitioner is not represented by counsel, a liberal interpretation of §275.4(a) is appropriate, particularly where, as here, there is no evidence of prejudice to the respondent (Appeal of DeGroff, et al., 31 Ed Dept Rep 332, Decision No. 12,657).  Petitioner has provided her email address, which enables respondent to contact her.  Under the circumstances, therefore, I find that petitioner has substantially complied with §275.4 and I decline to dismiss the appeal based on this technical violation of the regulation (Appeal of Fillie-Faboe, 34 Ed Dept Rep 643, Decision No. 13,438; Appeal of DeGroff, et al., 31 id. 332, Decision No. 12,657).

Respondent argues that the appeal must be dismissed for lack of proper verification of the pleadings.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501). Respondent argues that the verification attached to the petition is defective because petitioner verifies the truth of the annexed “notices” rather than the petition. As I indicated above, where a petitioner is not represented by counsel, a liberal interpretation of the rules governing appeals to the Commissioner pursuant to Education Law §310 is appropriate absent prejudice to the opposing party (Appeal of Jiava, 55 Ed Dept Rep, Decision No. 16,817; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729).  In this instance, it is clear from the context that petitioner was verifying all the annexed documents, not just the notice of petition, since she refers to “notices” in the plural and the verification is annexed after the petition and exhibits.  I find that petitioner’s verification of the petition substantially complies with §275.5 and I decline to dismiss the appeal for lack of proper verification.  I further find that petitioner’s verification attached to the reply complied with §275.5.  I agree with respondent that petitioner, as a non-attorney, cannot make an affirmation as she apparently attempts to do in the reply, but petitioner also included a separate verification and the reply is properly verified.

Respondent argues that petitioner lacks standing to maintain the appeal, as she has not alleged any personal damage or injury to her civil, personal or property rights, or that she is a district resident or taxpayer.  Respondent asserts further that petitioner lacks standing to assert that voters have been deprived of their right to vote on the proposition.  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).

It is well-settled that a district resident has standing to challenge the conduct of an annual or special district meeting (see, Appeal of Crowley, et al., 39 Ed Dept Rep 665, Decision No. 14,345; Appeal of Schadtle and Wilcox, 38 id. 599, Decision No. 14,102; Appeal of Gravink, 37 id. 393, Decision No. 13,888).   Further, Education Law §§ 2021(19), 2008(2), 2035(2) and 3635(1) confer a right on qualified voters to determine whether to provide transportation beyond the minimum required by statute and to submit voter propositions to change the minimum or maximum mileage limitations for transportation. Thus, “[t]he power to provide transportation beyond that required by Education Law §3635 is a power reserved to the voters” (Appeal of Powell, 46 Ed Dept Rep 565, 569, Decision No. 15,597) and the denial of the right to vote on an expanded transportation policy confers standing on a qualified voter (Appeal of Wenger, 37 Ed Dept Rep 5, Decision No. 13,790).  Respondent is technically correct that there is no specific allegation in the petition that petitioner is a qualified voter or a district resident.  However, in response to that affirmative defense, petitioner alleges in her reply that she is “a taxpayer who resides in the district.”  Moreover, the petition to have the instant proposition placed on the ballot states that signatories must be registered voters.  The first signature on that petition is petitioner’s signature with her name and address and a registered voter must, of necessity, be a resident of the school district under Education Law §2012(3).  Respondent has not asserted that petitioner or any other signatory to that petition is not a registered voter or is not a district resident.  Indeed, respondent has alleged that petitioner has submitted universal busing propositions almost every year since 2000 and such propositions have been voted upon at several district meetings.  Apparently, respondent has accepted such propositions which, presumably, would not have occurred had petitioner not been a district resident and a registered voter.  Since petitioner is not represented by counsel, and it is apparent from the record that petitioner is a district resident and qualified voter, I decline to dismiss the petition for lack of standing.

To the extent that petitioner seeks a reprimand of the board of education or its members and imposition of a fine upon the district or any of its officers or employees, there is no provision of the Education Law authorizing the reprimand or fining of a board of education or its officers or employees (Appeal of Munoz-Feliciano, 54 Ed Dept Rep, Decision No. 16,773; Appeal of Tillett, 52 id., Decision No. 16,473; Appeal of C.Z., 52 id., Decision No. 16,450; Appeal of Oglesby, 51 id., Decision No. 16,311; Appeal of Boni, 41 id. 214, Decision No. 14,666).  Therefore, such claims must be dismissed for lack of jurisdiction.

Nevertheless, 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).  Subsequent to the commencement of this appeal, respondent voted on May 2, 2012 to reject the proposition at issue, petitioner’s request for interim relief was denied on May 10, 2012, and the annual district meeting was held on May 15, 2012 without the proposition on the ballot.  The only relief sought in the petition, other than a fine or reprimand, is an order that the proposition be placed on the ballot at such annual district meeting.  Such relief cannot be granted and the appeal, therefore, is moot, warranting dismissal.  Although petitioner argues in her reply that I should set aside the results of that annual meeting, as discussed above, such relief was not sought in the petition and cannot properly be raised for the first time in a reply.

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

THE APPEAL IS DISMISSED.

END OF FILE