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Decision No. 12,809

Appeal of WILLIAM F. BROWN from action of the Board of Education of the Amherst Central School District regarding voter propositions.

Decision No. 12,809

(September 17, 1992)

Nesper, McElvein, Ferber & DiGiacomo, Esqs., attorneys for respondent, James M. Nesper, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks an order directing the Board of Education of the Amherst Central School District to submit to the voters of the district proposals that require the district to "take appropriate action" to reduce annual district spending by 25% over the next five years and to develop a merit compensation plan for all district employees. The appeal must be dismissed.

The voter propositions were presented to and rejected by respondent on April 7, 1992. Petitioner maintains that the rejection of the propositions violates State law and the Federal and State Constitution.

Education Law '2008(2) provides that a board of education, upon presentation of a proper petition requesting the board to call a special vote for the purpose specified in the petition, shall proceed to call the meeting unless it appears

(a) that the purpose for which such meeting is sought to be called is not within the power of the voters of the district, or

* * *

(d) that other valid reason exists for refusing to call such meeting which reason when appealed to the commissioner of education shall be deemed by him to be sufficient cause for such refusal.

Pursuant to Education Law '1716, authority to develop a budget for a school district rests with the board of education. The voters of the district have no legal authority to require the reduction of a budget item approved by the board (Matter of Gang, et al., 23 Ed Dept Rep 118; Matter of Lawson, 18 id. 314). Accordingly, respondent properly rejected petitioner's proposition that district spending be reduced by 25% over the next five years, since it is not within the power of the voters to compel such a reduction.

Pursuant to Education Law ''1709(16), 1711, 3011 and Article 14 of the Civil Service Law, authority to contract with employees of a school district is vested with the board of education. There is no authority which confers upon the voters the right to limit the powers of a board of education to enter into contracts authorized by statute (Matter of District No. 11, Town of DeWitt, 50 St Dept Rep 58). Therefore, respondent's rejection of the proposition to determine the provision of compensation to district employees was also properly rejected.

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). Petitioner offers no legal basis to support his claim that respondent's rejection of the voter proposals violated his constitutional rights. In any event, an appeal to the Commissioner of Education is an inappropriate forum for the litigation of novel questions of constitutional law (Appeal of DePasquale, 30 Ed Dept Rep 361; Appeal of DePold, 26 id. 460; Matter of Sepinski, 25 id. 183).

Petitioner also claims that respondent violated the Open Meetings Law (Public Officers Law, Article 7) by holding "secret" meetings on the matter. Violations of the Open Meetings Law are properly reviewed in a judicial proceeding brought pursuant to the Civil Practice Law and Rules Article 78, or in a judicial action for declaratory judgment and/or injunctive relief, and may not be adjudicated in an appeal to the Commissioner of Education (Appeal of Elkins, 27 Ed Dept Rep 99; Application of Board of Education, Cornwall CSD, 25 id. 250; Matter of Alcorn, et al., 24 id. 201).

I have considered petitioner's other arguments and find them without merit.

THE APPEAL IS DISMISSED.

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