Decision No. 12,603

(November 25, 1991)

Victor M. DeBonis, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner seeks an order setting aside the results of a special district meeting held by the Board of Education of the Shenendehowa Central School District on August 6, 1991 at which the voters approved funding for interscholastic sports. The appeal must be dismissed.

On June 5, 1991 the voters of respondent district rejected the budget offered by the board for the 1991-92 school year. Respondent adopted a contingency budget on June 6, 1991 and scheduled a special district meeting for June 26, 1991 to vote on four budget propositions. The record is unclear as to the results of the vote on all propositions, but the voters rejected the proposal for interscholastic sports. Following receipt of a petition, respondent scheduled another district meeting for August 6, 1991 at which a proposition to fund interscholastic sports was again presented. This time, the voters approved funding for the sports program. This appeal ensued.

Before reaching the merits, I must address a procedural issue. My review of the record reveals that petitioner's reply papers contain new material which was not previously set forth in the petition and which does not respond to new material or affirmative defenses set forth in the answer (8 NYCRR 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Matter of Pronin, 27 Ed Dept Rep 203). Therefore, I will not consider those portions of the reply that raise new matters.

While it is not entirely clear from the petition, petitioner seems to request that I set aside the results of the August 6 vote on several grounds. First, petitioner claims that respondent was not authorized to accept the petition calling for another vote on the interscholastic sports program. In addition, petitioner maintains that respondent neglected to verify that the petition was signed by a sufficient number of qualified voters. Petitioner also maintains that respondent improperly accepted the petition for a new vote immediately, instead of waiting 30 days from when it was presented to the board.

Education Law '2008(2) sets forth the procedure for calling a special district meeting:

Contrary to petitioner's contention that respondent was not authorized to hold the special election to fund the sports program, the calling of a special meeting to vote upon a budget proposition for a non-contingent expense set forth in a petition from the voters is authorized by Education Law '2008(2). (SeeRichards v. Board of Educ., 83 AD2d 191; Matter of Mullen, 16 Ed Dept Rep 246).

With respect to the number of signatures required on the petition, the record indicates that the petition was duly reviewed by a district employee to ensure that it contained the requisite number of signatures of qualified voters. As noted above, Education Law '2008(2) provides that a petition for a special election must be signed by five percent of the number of voters who voted in the previous annual election of the members of the board of education. That number is to be determined by the number of persons recorded on the poll list as having voted at such election. The record indicates that 7,960 individuals voted at the district's previous election of members of the board. Five percent of that number is 398. The petition which is the subject of this appeal contained 1,064 signatures. After the petition was reviewed, respondent determined that 139 signatures on the petition were invalid and 925 signatures were of qualified votes. Since only 398 valid signatures were required, I find that petitioner's allegation on this issue is without merit.

Regarding petitioner's contention that respondent board was required to wait 30 days from presentation of the petition to the board before accepting the petition, there is no statute, regulation or court decision which mandates such a waiting period. In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Singh, 30 Ed Dept Rep 284; Appeal of DiMicelli, 28 id. 327; Appeal of Amoia, 28 id. 150). Because petitioner offers no legal basis to support his claim that respondent violated some mandatory waiting period, I must reject it.

Petitioner further requests that I censure respondent board members and the superintendent. Although the Education Law does not authorize censure of those individuals by the Commissioner of Education (Matter of Legatos, 23 Ed Dept Rep 10; Matter of Graham, 11 id. 220), Education Law '306 authorizes the Commissioner to remove from office a school board member or superintendent for willful violation or neglect of duty under the Education Law. Petitioner has, however, failed to establish any willful misconduct. There is, therefore, no basis upon which to remove those individuals from their positions.

Finally, petitioner seeks an order requiring respondent to conduct a special meeting "to work out a compromise on the budget" in lieu of adopting a contingency budget. Again, petitioner has failed to demonstrate a clear legal right to this rather novel relief (Appeal of Singh, supra). Moreover, petitioner's request that respondent be directed to compromise on the budget ignores the fact that a board of education is expressly authorized to adopt a contingency budget if the voters reject the board-proposed budget (Education Law '2023).

I have reviewed petitioner's remaining claims and find that they are without merit.

THE APPEAL IS DISMISSED.

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