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Decision No. 13,891

Appeal of JACK L. COLE, EDWARD L. KIMBLE, SR., OWNEY MATHEWS, CHARLES R. REYNOLDS, MARK SWITZER and MARY O. REYNOLDS from action of Willie Pittman, President, James E. Halpin, Vice-President, Alice Learn, Jeffrey Greuber and Kevin Murphy as members of the Board of Education of the Odessa–Montour Central School District, and the Boards of Trustees of the Dutton S. Peterson Memorial Library and the Montour Falls Memorial Library.

Decision No. 13,891

(March 18, 1998)

Sayles, Evans, Brayton, Palmer & Tifft, attorneys for respondent Board of Education members, James F. Young, Esq., of counsel

Denton, Keyser, LaBrecque & Moore, attorneys for respondent Boards of Trustees, Thomas Farstad, Esq., of counsel

 

MILLS, Commissioner.--Petitioners seek an order directing the Board of Education of the Odessa-Montour Central School District ("board") to submit to the voters a resolution regarding a tax levy to support two public libraries. The appeal must be sustained in part.

Petitioners are residents and registered voters in the Odessa-Montour Central School District. In addition, petitioners Mary O. Reynolds and Mark Switzer are members of the board who voted in favor of placing the disputed resolution on the ballot. At the February 20, 1997 regular board meeting, petitioner Mary O. Reynolds presented to the board petitions signed by 111 district residents. The petitions requested that the board place on the ballot for the annual budget vote in May 1997, a resolution concerning whether to continue the annual tax levy to support the Montour Falls and Dutton S. Peterson Memorial Libraries.

The library tax issue originated in 1994 at the January 20, 1994 board meeting, when members of the Boards of Trustees of the two public libraries in the district informed the board that they intended to submit a library budget resolution, pursuant to Education Law "259, for a separate tax levy to support the libraries. Such a tax levy, if approved by the voters, would remain in effect each year, without annual voter approval, until altered in a subsequent proposition. At the May 1994 budget vote, the resolution to levy a tax for $19,505 for the Montour Falls Memorial Library and $19,669 for the Dutton S. Peterson Memorial Library passed with 253 votes in favor and 250 votes against.

The following year, a petition signed by 38 residents was presented at the March 16, 1995 board meeting. That petition requested that the following resolution be placed on the May ballot:

Shall the authority of the Board of Education of the Odessa-Montour Central School District to levy an annual tax for the purpose of contributing to the support of the Montour Falls and Dutton S. Peterson Memorial Libraries be revoked and rescinded.

The board voted to place the resolution, as submitted, on the May 1995 ballot. It failed to pass by 68 votes, 435 against to 367 in favor, thus retaining the tax.

The next year, at the March 21, 1996 board meeting, another petition, with 123 signatures, was submitted, again requesting that a resolution about the library tax be included on the May ballot. That resolution provided:

Shall the authority of the Board of Education of the Odessa-Montour Central School District to levy an annual tax for the purpose of contributing to the support of the Montour Falls and Dutton S. Peterson Memorial Libraries be continued?

After discussion at a special board meeting on April 4, 1996, a motion was made to place the resolution on the ballot for the May 7, 1996 annual budget vote, with the addition of the dollar amount of the taxes. Thus, the language of the 1996 resolution, as it appeared on the ballot, was as follows:

Shall the authority of the Board of Education of the Odessa-Montour Central School District to levy an annual tax for the purpose of contributing to the support of the Montour Falls and Dutton S. Peterson Memorial Libraries be continued, at the level of $19,505 for the Montour Falls Memorial Library and $19,669 for the Dutton S. Peterson Memorial Library for a total of $39,174?

The resolution to continue the library tax levy was approved by 75 votes, 398 in favor to 314 against.

Thus, when petitioner Mary O. Reynolds presented the petitions for a resolution at the February 20, 1997 regular board meeting, it was the third time such a resolution had been presented following the initial approval in 1994 by only three votes. The language of the 1997 resolution at issue was the same as that originally submitted in 1996, without the additional language concerning the dollar amounts. Five of the seven board members, the respondents herein, voted against placing the resolution on the ballot.

Petitioners contend that respondent board members acted arbitrarily and capriciously in not accepting the petition to place the proposition on the ballot; denied district residents their right to vote in violation of Education Law "2035; violated their oaths of office by refusing to uphold the law, especially in light of the board attorney’s advice to accept the resolution; are guilty of dereliction of duty; and never advised that the proposition must contain the dollar amounts. Respondent board members contend that a resolution regarding a tax levy must contain the dollar amount of the levy, and that they have no obligation to place a proposition on the ballot when the petition calling for a vote on the tax levy does not contain the dollar amount of the levy. Respondent board members also assert that petitioners have failed to name the board of education as a necessary party. Respondent board members assert therefore that the Commissioner lacks the authority to direct the board of education to take any action.

Respondent Boards of Trustees of the Dutton S. Peterson Memorial Library and the Board of Trustees of the Montour Falls Memorial Library seek dismissal of the petition as to them. They contend that the Commissioner has no jurisdiction over them, and that the petition fails to state a cause of action or claim against them. Petitioners assert that the reply of the library trustees was untimely, the trustees are necessary parties, and the Commissioner does have jurisdiction over them.

I will first address several procedural matters. Petitioners have submitted an affidavit to correct paragraph sixteen of the petition, regarding a confusing characterization of the final vote in the May 1996 election. Respondents do not object and therefore I have accepted for filing the supplemental affidavit that corrects paragraph sixteen of the petition.

However, in the reply, petitioners have raised a new allegation requesting the denial of a good faith certificate under Education Law "3811 and the denial of respondent board members’ legal fees and costs as an covered expense by the district. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR "275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Rampello, 37 Ed Dept Rep 153; Appeal of Lawson, 35 id. 450, Appeal of Brush, 34 id. 273). Therefore, I will not consider those portions of petitioners’ reply containing new allegations and material not responsive to new material or affirmative defenses set forth in the answer.

I also decline to dismiss this appeal for failure to join a necessary party. Respondent board members argue that the appeal must be dismissed because petitioners failed to name the board of education as a respondent. Indeed, a party whose rights would be adversely affected by a determination in favor of the petitioners is a necessary party and must be joined as such (Appeal of Frasier, 34 Ed Dept Rep 315). Joinder requires that the necessary party be named as a respondent, served with the petition, and afforded a genuine opportunity to respond to the allegations (Appeal of Osterman, 30 Ed Dept Rep 290). Here, petitioners request relief directed at the board of education, namely an order directing the board of education to submit to the voters a resolution regarding the continuation of the library tax. While the board of education was not named in the caption of the petition, two petitioners are board members and the applicable affidavits of service indicate that all remaining board members are named as respondents and were served a copy of the petition and a notice of petition (8 NYCRR 275.8[a]). Moreover, the caption names the respondent board members "as members of the board of education." It is the notice of petition which alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition (8 NYCRR 275.11; see, Appeal of Barbara D. and James D., Jr., 34 Ed Dept Rep 118). I conclude that the board had a fair opportunity to respond to the allegations and indeed did respond. Therefore, under the facts of this case, the technical defect of failing to name the board in the caption is deminimis, did not prejudice respondents, and is not a sufficient basis for me to dismiss this appeal (Appeal of Barbara D. and James D., Jr., supra).

However, I must dismiss the appeal as it pertains to the Boards of Trustees of the two libraries. Pursuant to Education Law "310(5) and (6), petitions to the Commissioner may be made in consequence of any action by any trustees of any schoollibrary concerning such library or by any district meeting in relation to the library. There is no evidence presented that the two libraries in question are school libraries. Accordingly, as to the Boards of Trustees of the Montour Falls and Dutton S. Peterson Memorial Libraries, the appeal must be dismissed for lack of jurisdiction (Appeal of Moore, 20 Ed Dept Rep 27).

I turn now to the merits. Petitioners contend that respondent board members acted arbitrarily and capriciously in not accepting the petition to place the 1997 proposition on the ballot, especially since the district’s lawyer advised the board that the proposition "must be presented to the voters on account of the petition," and the board had the authority to include the dollar amount in the resolution. Petitioners also state that respondent board members claimed they could not in good faith change the wording of the resolution as submitted by petitioners, even though the motion to place the resolution on the ballot had added the proper dollar amounts. Respondent board members deny that they acted arbitrarily or capriciously and contend that the lack of dollar amounts rendered the petition invalid. They admit, however, to expressing that they were personally in favor of the library tax, they were tired of the yearly battle and felt the matter did not need to be on the ballot every year. Neither party submitted the minutes of the March 27, 1997 meeting. Accordingly, the supposed motion adding the dollar amounts and the expressed opinions of the board members are not in the record.

Petitioners assert that under Education Law ""2008(2) and 2035(2), the submission of the library tax proposition was proper. Section "2035(2) provides in pertinent part that "any proposition may be rejected by the trustees or board of education if the purpose of the proposition is not within the power of the voters, or where the expenditure of moneys is required by the proposition, if the proposition fails to include the necessary specific appropriation." Here, neither party contends that the purpose of the proposition is beyond the power of the voters. Nor do respondents claim that the proposition conflicts with other matters being voted on simultaneously (Appeal of Martin, 32 Ed Dept Rep 567) or that the proposition, if passed, would have led to ambiguous results (Appeal of Krause, 27 Ed Dept Rep 57). Respondent board members contend merely that the lack of dollar amounts rendered the petition invalid. However, the "necessary specific appropriation" is required only where the proposition requires an expenditure. In prior cases that have upheld the board’s authority to reject a proposition for failure to include a monetary amount, those propositions called for increased spending by the board of education. For example, where a proposition called for increased transportation but omitted the related increased costs, the board properly rejected the proposition (see, e.g., Appeal of Riordan, 27 Ed Dept Rep 182; Appeal of Austin, 27 id. 17; Appeal of Kruta et al, 20 id. 363). (Seealso, e.g., Appeal of Denninger and Tompkins, 27 id. 365; Appeal of Gilbert, 19 id. 166).

In the instant case, the proposition did not require an expenditure. Rather, the proposition here asked district voters to reconsider whether the board of education should continue to levy an annual tax for the libraries. As discussed supra, under Education Law "259, once the voters have approved the levy of taxes for library purposes, such taxes remain in effect each year, without annual voter approval, until altered in a subsequent proposition. Thus, since the library tax was already in effect and no expenditure was proposed, no monetary amount was required. Although the board has significant discretion in how it conducts its business, it erred in rejecting the proposition on the basis that it did not include monetary amounts. The board was incorrect in refusing to place the proposition before the voters, notwithstanding its frustration that the same proposition, or a similar one, may have been rejected by the voters at the last two annual meetings (see, Appeal of Martin, 29 Ed Dept Rep 148).

While the board has the authority to make revisions to the language of a proposition to remove any ambiguity (Appeal of Como, 30 Ed Dept Rep 214), it is not mandatory for it to do so (Appeal of Martin, 29 id. 148). Nonetheless, I would urge the board to cooperate in easing the pathway for future propositions brought before it, by assisting in making relatively minor revisions to proposed propositions if necessary (Appeal of Harwood, 36 Ed Dept Rep 499; Appeal of Krause, 27 id. 57).

I must address one further matter. It appears that the board of education has apparently failed to adopt a rule concerning the submission of petitions. Pursuant to Education Law "2035(2), 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]." (Appeal of Atkin, 35 Ed Dept Rep 375). Therefore, if this district uses voting machines, I remind it to comply with the requirements of "2035.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent board of education accept any legally sufficient proposition, including the one in dispute herein if properly and timely resubmitted, for consideration by the voters at the next annual election.

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