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Decision No. 13,617

Appeal of NICHOLAS MAURO from action of the Board of Education of the Wells Central School District regarding absentee balloting.

Decision No. 13,617

(June 8, 1996)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the policy of the Board of Education of the Wells Central School District ("respondent") which does not allow absentee balloting. The appeal must be dismissed.

Petitioner alleges that respondent manipulates its constituency by scheduling its referenda for February, when 25 to 30 percent of the voters are away for the winter, and not allowing for absentee balloting. Petitioner submitted with his appeal petitions allegedly containing the signatures of the majority of respondent's residents, requesting "a vote on absentee balloting of all Wells Central School District voting." He also requests an immediate injunction of all balloting pending the introduction of absentee or proxy balloting. Petitioner's request for interim relief pending a determination on the merits was denied on January 23, 1996.

Respondent contends that the appeal should be dismissed because petitioner fails to state a cause of action and is not entitled to the relief requested.

Section 275.10 of the Commissioner's regulations requires a "petition [to] contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief." That is, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Nash, 35 Ed Dept Rep 203; Appeal of Goldman, 35 id. 126) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Nash, supra; Appeal of DiMicelli, 28 Ed Dept Rep 327).

First, petitioner has failed to establish the facts upon which he seeks relief. Petitioner provides no evidence to support his claims that either respondent schedules its referenda for the winter months or that 25 to 30 percent of the electorate are out of the district at that time. Rather, respondent indicates that over the past five years, special meetings for the purposes of voting on capital projects have been held at various times throughout the year: two in May and one in each of the months of February, October, and December (with one scheduled for February 1996). Furthermore, respondent indicates that the highest and lowest voter turnouts occurred in May, with the second highest turnout occurring in February, which, if true, contradicts petitioner's theory.

Petitioner also fails to demonstrate that his allegations, if true, form a legal basis for relief. Education Law '2018-a provides that a "board of education . . . may, by resolution adopted at a regularly scheduled meeting, provide for absentee ballots." Thus, the authority to provide for absentee ballots is vested in the board of education and is not a matter for determination by the voters (Appeal of Martin, 25 Ed Dept Rep 446). A board may not, even if it wishes to do so, delegate the decision to the voters (Appeal of Hendrickson, 28 Ed Dept Rep 354). In addition, there is no authority for proxy voting (Matter of Action of the Annual School Meeting, 58 St Dept Rep 423).

Although not required to do so, respondent indicates that after petitioner's expression of constituent interest in absentee balloting at a board meeting, it has taken the matter under consideration.

THE APPEAL IS DISMISSED.

END OF FILE