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Decision No. 13,890

Appeal of ROBERT B. COX, JR., from action of the Board of Education of the Wyandanch Union Free School District relating to propositions.

Decision No. 13,890

(March 13, 1998)

Kevin A. Seaman, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the action of the Board of Education of the Wyandanch Union Free School District ("respondent") which rejected two propositions that he sought to have placed on the ballot. The appeal must be dismissed.

Although this appeal concerns rejection of propositions in 1996, the controversy between petitioner and respondent started in 1994. On June 22 of that year, respondent adopted a resolution approving an installment purchase agreement with Xerox Corporation for the acquisition of certain photocopying equipment. The following month, at its reorganization meeting on July 6, petitioner was appointed district treasurer. During the fall of 1994, petitioner became concerned about various payments being made on the installment purchase contract (which he had not seen), expressed his concern to the board, and communicated with the New York State Comptroller's Office. Petitioner says that he was unable to obtain a copy of the agreement until May 26, 1995, following a Freedom of Information Law request. Petitioner apparently left the office of district treasurer on September 30, 1995.

At some time early in 1996, petitioner commenced an action in Supreme Court, Suffolk County, against respondent, Xerox Corporation, individual board members, the school district's attorney and business manager, and others, with respect to the 1994 installment purchase contract. While that action was pending, petitioner submitted two propositions relating to that contract to respondent, to be placed on the ballot for the 1996 annual meeting. The propositions were:

To repeal, alter or otherwise modify the proceedings and vote of the Board of Education of June 22, 1994, which authorized the leasing of any and all capital equipment at a cost to the District of $100,000.00 per annum or as defined under Local Finance Law and subject to bid or voter approval.

Authorizing the levy of a tax not to exceed $200,000.00 to prosecute a suit to replace monies of the District, lost or embezzled by District officers or other parties as a result of the leasing of capital equipment from the Xerox Corporation as voted by the Board of Education on June 22, 1994.

These propositions were rejected by a board resolution adopted May 15, 1996, " . . . on the grounds that the subject matter of such are not within the authorities/powers of the electra [sic] to consider." This appeal ensued.

The lengthy petition herein goes into a great deal of detail about matters involving the installment purchase agreement, competitive bidding, various other controversies between petitioner and respondent, disagreements over the board's compliance with statute and setting the date for the annual district meeting and vote, and numerous procedural matters involving the district's handling of propositions. Many of these matters are duplicative of the claims asserted by petitioner in the action pending in Supreme Court, Suffolk County, and will not be considered. (They also occurred more than 30 days prior to the commencement of this appeal.) Indeed, petitioner states in his reply that he would not object to my deferring in these matters to the Supreme Court, except for the matters dealing with propositions which arose after the commencement of that legal action. I will also not consider various claims with respect to alleged deficiencies in the district's rules concerning the submission of propositions pursuant to Education Law "2035(2) because it is clear from the board's resolution that the sole ground for rejection of petitioner's propositions was that the board considered them to be beyond the authority of the electorate, and not that petitioner had failed to comply with proper procedure in their submission.

With respect to the first proposition, i.e., to repeal, alter or otherwise modify the resolution of the board in 1994, petitioner claims that this proposition is authorized by Education Law "2021(14), which provides:

The inhabitants entitled to vote, when duly assembled in any district meeting, shall have power, by a majority of the votes of those present and voting:

. . . .

14. To alter, repeal and modify their proceedings, from time to time, as occasion may require.

I reject petitioner's interpretation of this statute to authorize the voters to repeal resolutions of the board of education. The statutory language clearly empowers the voters to modify or repeal matters which they have voted on in a prior district meeting, and has no application to actions taken by the board of education.

With respect to the second proposition, i.e., authorizing a tax to prosecute a suit to replace monies allegedly lost or embezzled, petitioner argues that such action is authorized by Education Law "2021(16), which provides:

The inhabitants entitled to vote, when duly assembled in any district meeting, shall have power, by a majority of the votes of those present and voting:

. . . .

16. To vote a tax to replace moneys of the district, lost or embezzled by district officers; and to pay the reasonable expenses incurred by district officers in defending suits or appeals brought against them for their official acts, or in prosecuting suits or appeals by direction of the district against other parties.

Both in the petition and in his reply, petitioner takes the position that this proposition does not demand, direct, or request that the district prosecute a lawsuit, nor does it infringe upon the powers of the board of education. Indeed, in his reply, petitioner specifically concedes that whether or not a suit is to be prosecuted by the district, with district funds, is within the authority of the board of education. The language of the proposition, however, in authorizing the levy of a tax "to prosecute a suit," could certainly suggest to a reasonable voter that the electorate was being asked to compel the initiation of a lawsuit against district officers or other parties. Both parties appear to agree that the voters lack authority to compel such action. I therefore cannot conclude that the board was arbitrary or capricious in rejecting the proposition as being beyond the power of the voters.

I express no opinion as to those matters which are pending before the Supreme Court, Suffolk County. With respect to other matters not within the context of that action, I have examined the contentions of the parties and find them without merit.

THE APPEAL IS DISMISSED.

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