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Decision No. 13,071

Appeal of ERIK SOBKIEWICZ from action of the Board of Education of the Carthage Central School District concerning a voter proposition.

Decision No. 13,071

(December 22, 1993)

Brown & Dierdorf, Esqs., attorneys for respondent, Paul W. Brown, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges the conduct of a special meeting held on March 29, 1993 by the Board of Education of the Carthage Central School District. The appeal must be dismissed.

At a special meeting, the voters approved a proposition to authorize the construction of additions to and reconstruction of district buildings at a cost not to exceed $12,898,000. Six hundred eighty five votes were cast in favor of the proposition and 676 votes were cast in opposition. Petitioner claims that 19 of the 685 votes should not have been counted in favor of the proposition because the levers of the voting machines pulled in casting those votes were not definitively "yes" or "no" levers. Petitioner, therefore, maintains that since it could not be determined with certainty that the 19 votes in question were cast in favor of the proposition, respondent should have declared that the proposition was disapproved and a second vote on the proposition should have been held.

Respondent denies that the 19 votes are "questionable votes" which should not be counted as affirmative votes. In addition, respondent contends that petitioner has no standing to bring this proceeding, since petitioner is not a resident of the State of New York, is not registered to vote in the State of New York and did not vote in the special meeting. In a letter from counsel for respondent, dated September 30, 1993, respondent reported that at a special district meeting held on September 29, 1993, the voters considered the same proposition related to the construction of additions to and reconstructions of various district buildings. At that second special meeting, the proposition was passed by a vote of 956 in the affirmative and 524 in the negative. Respondent forwarded to petitioner a copy of the official tally of the three voting machines used, sworn to by the district clerk. That tally is a part of the record before me.

With respect to the threshold issue of standing, it is well established that a non-resident has no legal standing to contest any action taken by a district (Appeal of LaCorte, 29 Ed Dept Rep 170; Matter of Gormley, 15 id. 160; Matter of Mullen, 16 id. 246). Since the record shows that at the time of the election petitioner was not a resident of the State of New York, petitioner lacks standing to bring this appeal. Moreover, the Commissioner will determine only matters which are in actual controversy and will not render a determination upon a matter which subsequent events have laid to rest Appeal of Johnson, 32 Ed Dept Rep 662; Appeal of DiMilia, 30 id. 391; Appeal of Sileo, 28 id. 313). Since a second vote on the proposition has since been taken and the proposition has been passed by a significant margin, this appeal is also dismissed as moot.

THE APPEAL IS DISMISSED.

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