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Decision No. 13,043

Appeal of MICHAEL J. BODE from action of the Board of Education of the Garden City Union Free School District regarding a vote proposition.

Decision No. 13,043

(November 9, 1993)

Torino & Singer, P.C., attorneys for petitioner, Bruce A. Torino, Esq., of counsel

Cullen and Dykman, Esqs., attorneys for respondent, Thomas B. Wassel, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges the refusal of the Board of Education of the Garden City Union Free School District ("respondent") to submit a proposition to district voters at the regular annual meeting on May 6, 1993. The appeal must be dismissed.

On March 30, 1993 a proposition was submitted to respondent with a request that it be presented to the voters at the May 6, 1993 annual meeting. The proposition read:

That service by a person on the board of education be limited to four three-year terms, with not more than two such terms being consecutively served.

On April 19, 1993, respondent rejected the proposition. Subsequently, respondent also voted not to adopt a policy favoring term limits for board members. This appeal ensued.

Petitioner contends that respondent improperly refused to present to the voters the proposition concerning term limits or to adopt the concept of term limits as board policy without seeking voter input. Petitioner's contentions are without merit.

A board of education has no inherent powers and possesses only those powers expressly delegated by statute or necessarily and reasonably implied therefrom (Flaminio v. Bd. of Education, 97 Misc 2d 722; Leone v. Hunter 21 Misc 2d 750; Cannon v. Towner, 188 Misc 955; Matter of Beadle, 25 Ed Dept Rep 267). Education Law '2105(3) provides for a three to five year term for a board member in a union free school district, with the voters authorized to increase or decrease the number of years of a full term within the three to five year range. There is no limitation specified on the number of terms for which a board member may serve. Thus, there is simply no statutory authority, express or implied, to support petitioner's contention that the voters of a district may limit the number of terms a board member may serve (Matter of Bakal, 9 Ed Dept Rep 134). Imposing term limits would constitute an amendment to that statute, which is beyond the power of the voters or the board to effect.

Education Law '2021 sets forth the powers possessed by school district voters. The power to establish term limits is not specified in Education Law '2021. Nor is it necessarily and reasonably implied from the provisions of that statute or Education Law '2105(3). Since the purpose of the proposition regarding term limits is not within the power of the voters, its rejection by respondent was proper (Education Law '2035(2); Matter of Bakal, supra).

Petitioner maintains that the authority of school district voters to impose term limits can be implied from Article 10 of the Constitution. Petitioner's claim is made in the wrong forum. An appeal to the Commissioner of Education is an inappropriate forum for the litigation of novel questions of constitutional law (Appeal of Reid, 32 Ed Dept Rep 587; Appeal of DeGroff, 31 id. 332; Appeal of Sepinski, 25 id. 183). If petitioner wishes to pursue his constitutional claims, he must do so in a court of competent jurisdiction.

Petitioner has also submitted a copy of a recent unreported decision which upheld the placement on the ballot of a referendum limiting terms in New York City (Roth v. Cuevas, NYLJ, September 27, 1993). Petitioner's reliance on Roth, however, is misplaced. In Roth, the court ruled that pursuant to Municipal Home Rule Law '10, a city is authorized to amend its charter and impose term limitations by means of a public referendum. Such authority would apply to other local governments, as that term is defined in the Municipal Home Rule Law. Pursuant to Municipal Home Rule Law '2, however, local governments include counties, cities, towns or villages - not school districts. Accordingly, the Roth decision is not applicable to the facts of this case.

Petitioner also requests that certain property owners' associations be barred from participating in the election of board members. Petitioner maintains that such associations somehow disenfranchise voters and impede residents from running for the board. The record before me, however, does not support petitioner's conclusory allegations. The property owners' associations are four separate unincorporated groups who nominate candidates, just as a political party would. Petitioner offers no evidence to support his allegation that this practice is illegal, disenfranchises voters or impedes individuals from seeking election to the board. Indeed, any individual who obtains the requisite number of signatures on a nominating petition may run as a candidate, whether as a member of a group or as an individual.

THE APPEAL IS DISMISSED.

END OF FILE