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Decision No. 13,576

Appeal of JUDITH W. ATKINS from action of the Board of Education of the Sidney Central School District regarding a voter proposition.

Decision No. 13,576

(March 18, 1996)

MILLS, Commissioner.--Petitioner, a resident and taxpayer of the Sidney Central School District, challenges the refusal of the Sidney Board of Education ("respondent") to submit a proposition to district voters at the annual meeting on June 7, 1995. The appeal must be sustained in part.

Respondent has not filed an answer to the petition, despite personal service and notification by my Counsel's Office. Accordingly, the factual allegations set forth in the petition will be deemed true (8 NYCRR 275.11).

On March 28, 1995, respondent was presented with a petition to submit a proposition to the voters at its 1995 annual meeting to decrease the term of office of board members from five to three years. On April 11, 1995, respondent rejected the petition based on its attorney's opinion that the petition was "not in proper form." Thereafter, the district verbally informed the petitioning voters that the petition lacked a sworn statement attesting to the signatures on the petition.

On April 25, 1995, respondent was presented with another petition concerning the same proposition. Respondent rejected this petition on its attorney's advice that the petition was not in proper form because some of the petitioning voters listed a post office address as opposed to a street address.

Petitioner contends that respondent improperly refused to present the proposition to the voters. Petitioner further contends that respondent failed to establish rules for the submission of petitions. Petitioner requests that I direct respondent to call a special meeting for the purpose of voting on the proposition. Petitioner also requests that I direct respondent to establish rules for the submission of petitions.

Initially, I find that respondent has apparently failed to adopt a rule concerning the submission of petitions. Education Law '2035(2) provides in material part that, in districts using voting machines, "the manner of submitting propositions by anyone other than the board of education for the purpose of preparing ballots for the machine shall be prescribed by a rule previously adopted by the trustees or board of education..." Pursuant to this section, if voting machines are used, a board of education has a statutory obligation to adopt a rule prescribing "the manner of submitting propositions by anyone other than the board ... for the purpose of preparing ballots for the [voting] machine[s]." (Matter of Manno, et al., 23 Ed Dept Rep 172; Matter of Nicoletti, 21 id. 38). Therefore, to the extent respondent uses voting machines, I find it is in violation of Education Law '2035(2), and admonish it to comply henceforth with the requirements established therein.

With regard to the proposition, Education Law '2105(3) specifically authorizes the voters of a central school district to decrease the term of board members from five to three years at any annual meeting or election. Although it is not entirely clear from the record, it appears that respondent rejected the first petition because it did not contain a sworn statement attesting to the signatures on the petition. It further appears that respondent rejected the second petition because of the way in which the petitioning voters listed their addresses.

There is no requirement in Education Law '2035(2) or '2105(3) that a petition concerning a proposition contain a sworn statement or that petitioning voters list their addresses on the petition. Further, Education Law '2008 only requires that a voter petition for a special district meeting state the purpose thereof and be signed by 25 qualified voters or 5% of the number of voters who voted in the previous annual election of the members of the board of education. Although Education Law '2018 requires nominating petitions for board members to state the residence of each signer, there is no such requirement in the Education Law for a petition to decrease the term of board members. Therefore, respondent improperly rejected the petitions on these grounds.

Petitioner, however, requests that I order a special meeting to vote on the proposition. Education Law '2105(3) provides that a petition to increase or decrease the term of board members be presented at the annual meeting. Therefore, I cannot order the relief requested.

In addition, I must comment on the language of the proposition. Whenever a proposition is adopted to decrease the term of office from four or five years to three years, such proposition shall provide:

that one or more of the vacancies to be filled, during each of the three years next succeeding the adoption of such proposition, shall be for three or four years only in order that, as nearly as possible, an equal number of trustees shall be elected to the board each year (Education Law '2105[3]).

In this case, I note that the proposition presented to respondent did not contain the above-quoted language. The language required by '2105(3) should be included in any proposition to increase or decrease the term of board members (Matter of Graney, 11 Ed Dept Rep 333; Matter of Bakal, 9 id. 134).

Finally, I admonish respondent for its failure to answer the petition herein. The interests of all parties would be best served in the future by responding to such allegations.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent immediately adopt a rule regarding the submission of petitions as required by Education Law '2035(2).

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