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Decision No. 12,572

In the Matter of the Appeal of JOHN P. MAGUIRE, CECILE MAGUIRE, JOHN W. GALLAGHER, PHYLLIS GALLAGHER, and HAROLD SYLVESTER, from actions of the Board of Education of Minerva Central School District, relating to a bond issue.

Decision No. 12,572

(August 26, 1991)

Hinman, Straub, Pigors & Manning, P.C., attorneys for respondent, Bernard T. McCann, Esq., of Counsel

SOBOL, Commissioner.--Petitioners are residents of the Minerva Central School District and bring this appeal complaining of actions taken by the Board of Education relating to a bond issue which was voted upon and approved by district voters on June 5, 1990, as well as respondent's decision to allow two teachers to continue employment in the district. Petitioners request that I issue an order directing that the vote on the bond issue be annulled and that another vote be conducted to determine whether the bonds should be issued. Petitioners requested a stay of further proceedings by respondent and that request we denied in a decision dated June 24, 1991. The appeal must be dismissed.

On June 5, 1990, a vote was conducted by the Board of Education of the Minerva Central School District relating to a proposition to issue bonds to fund a capital construction project. The voters present and voting at that meeting determined to approve the proposition by a vote of 226 in favor, and 138 opposed. There were 4 void ballots. Petitioners contend that respondent failed to give proper legal notice in advance of the June 5, 1990 vote on the proposition relating to the bond issue. Petitioners allege that there were no legal notices posted, and that the June 5 vote succeeded an April vote on a similar issue without an appropriate time having intervened between the two votes. Petitioners also allege that in February, 1990 the senior class went on a trip to Cancun, Mexico. Petitioners allege that certain students engaged in excessive consumption of alcohol and that two teachers who were chaperons on the trip did not provide proper supervision. Petitioners allege that respondent has not acted to terminate the services of these teachers as requested by some district residents.

Respondent contends that this appeal, having been commenced by service of the appeal upon a board member on December 13, 1990, is not timely to review the results of the bond issue vote which occurred on June 5, 1990, more than six months before the appeal was commenced. The provisions of 8 NYCRR '275.16 require that an appeal be commenced within thirty days of the action complained of by the petitioner. Petitioners have offered excuses for the delay in initiating this appeal in the reply submitted in this matter. Petitioners generally allege that they were not represented by counsel, and that they were only able to obtain the handbook relating to appeals in August, 1990.

Apart from the fact that the excuse for the delay in initiating an appeal must appear in the petition, it is apparent that petitioners waited almost four months from their receipt of the handbook before commencing the appeal. Therefore, the appeal is untimely and must be dismissed (Appeal of Dwyer, 26 Ed Dept Rep 129; Appeal of Cook, 26 id. 132).

Furthermore, my review of the merits of the appeal would lead to the same

result. It is alleged by respondent and substantially confirmed by petitioners, that at any

given time there are approximately 450 voters eligible to vote on school district matters. Based on this figure, respondent alleges that approximately 81% of eligible voters voted at the special meeting on the bond issue. Respondent further alleges that if the remaining eligible voters had all voted in the negative, the vote would have still been sufficient to approve the bond issue.

The provisions of '2010 of the Education Law read as follows:

"The proceedings of no district meeting, annual or special, shall be held illegal for want of a due notice to all the persons qualified to vote thereat, unless it shall appear that the omission to give such notice was wilful and fraudulent."

There is no allegation or contention in this matter that the alleged failure by respondent to give the required notice of the meeting was in any way willful or fraudulent. Furthermore, the fact that over 80% of the eligible voters did present themselves to vote tends to support respondent's argument that the voters were not mislead, and had notice of the time and place of the vote on the bond issue. Under these circumstances, petitioners appeal would fail on the merits (Matter of Abel, 10 Ed Dept Rep 79). Petitioners' remaining arguments have been reviewed, but are also untimely and therefore the appeal must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE