Appeal of SOUTHAMPTON DAY CARE CENTER FOUNTAIN OF YOUTH, INC., from action of the Board of Education of the Southampton Union Free School District, regarding a proposition.

Decision No. 18,057

(November 10, 2021)

Advocates for Justice Chartered Attorneys, attorneys for petitioner, Laine Alida Armstrong, Esq., of counsel

Law Offices of Thomas M. Volz, PLLC, attorneys for respondent, Michael G. Vigliotta, Esq., of counsel

ROSA., Commissioner.--Petitioner Southampton Day Care Center Fountain of Youth, Inc. (“petitioner”) appeals a resolution of the Board of Education of the Southampton Union Free School District (“respondent”) rejecting the inclusion of a proposed proposition on the ballot at respondent’s annual meeting.  The appeal must be dismissed.

Petitioner is a private childcare center that serves “pre-school children”; i.e., students who are not yet of compulsory school age.  On March 17, 2021, petitioner submitted a petition with the requisite number of signatures to respondent requesting placement of a proposition before the voters at the district’s annual meeting.  The proposition concerned a resolution authorizing respondent to contract with petitioner in the amount of $75,000 for the 2021-2022 school year and levy the necessary taxes thereon.  On March 23, 2021, respondent unanimously rejected the proposition, determining that it was not within its exclusive province and/or legally impermissible.  This appeal ensued. 

Petitioner argues that respondent’s refusal to place the proposition on the ballot was arbitrary and capricious.  Petitioner contends that respondent accurately determined that the proposition was not within its exclusive province; consequently, petitioner asserts, the proposition should have been posed to voters.  To the extent that respondent determined that the proposition was legally impermissible, petitioner argues that respondent should have changed the language of the proposition to bring it into conformity therewith.  Petitioner requests that the proposition be added to the ballot at the May 2021 annual meeting,

Respondent contends that it does not have the legal authority to levy tax monies on behalf of petitioner, and therefore, the proposition could not legally be placed before voters.  It further argues that there is no alternative language that would improve the proposition given respondent’s inability to levy taxes on petitioner’s behalf.  

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 that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).  Petitioner seeks to have the proposition added to the ballot at the May 2021 annual meeting, which has already taken place.  Because no meaningful relief can be awarded, the appeal is moot (Appeal of Berhalter, et al., 48 Ed Dept Rep 446, Decision No. 15,910).

Even if the appeal were not moot, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner contends that the taxation contemplated by its proposition is authorized by Education Law § 2021 (8), which authorizes voters to vote “a tax upon the taxable property of the district ...  for the organization and conduct of athletic, playground and other social center work” (Education Law § 2021 [8]).  Petitioner has not met its burden of proving that its operations consist of “other social center work.”  The structure of this phrase suggests that it is defined in relation to the concepts of “athletic” and “playground” work with which it is grouped.  Thus, social center work appears to pertain to after-school recreation activities—the kind of services offered by Southampton Youth Association, Inc., an organization with which respondent contracts.  Accordingly, petitioner has failed to meet its burden of demonstrating a clear legal right to have its proposition submitted to voters.

Since there is no statutory authority for respondent to levy a tax on petitioner’s behalf, I cannot find that respondent abused its discretion by rejecting the proposition.  Petitioner has not suggested how respondent could, or should, have altered the language of the proposition to render it legally sound. 

Finally, a proposition concerning the Southampton Historical Museum is not, as petitioner argues, analogous to the proposition at issue herein.  The Southampton Historical Museum holds a charter from the New York State Board of Regents.  As such, respondent was authorized by statute to “grant money for the support of the cost of maintaining or the cost of any capital improvements to or expenditure for” the museum (Education Law §§ 253-256; see 29 Op. St. Compt. 94 [1973]).

In sum, petitioner has failed to show that respondent’s determination was arbitrary and capricious, or that respondent abused its discretion by rejecting the proposition instead of altering the proposed wording.  To the extent they are not addressed herein, petitioner’s remaining arguments are without merit.

THE APPEAL IS DISMISSED. 

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