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Decision No. 14,271

Appeal of EUGENE T. BROUSSEAU from action of the Board of Education of the Shenendehowa Central School District and the Xerox Corporation regarding a bond referendum and implementing bond resolutions.

Decision No. 14,271

(December 21, 1999)

McCary & Huff, LLP, attorneys for respondent Board of Education of the Shenendehowa Central School District, Kathryn McCary, Esq., of counsel

MILLS, Commissioner.--Petitioner, a resident of the Shenendehowa Central School District, challenges a bond referendum and two implementing bond resolutions adopted by the Board of Education of the Shenendehowa Central School District ("respondent board") in connection with respondent board’s plan for technology ("SHENet"). The appeal must be dismissed.

On May 7, 1997, district voters approved a bond proposition authorizing respondent board to expend $6.5 million dollars "to acquire and install cabling, computers, printers and other devices and to upgrade electric services in all of the district schools and facilities consistent with the district plan for technology."

Prior to the vote, respondent board disseminated a district newsletter that described SHENet as having three components: infrastructure, computers, and video and phone systems. The newsletter states that "to pay for the infrastructure, the district will ask residents to authorize a $6.5 million referendum" and that the method of financing would be via "20-year bonds." The voters of the district approved the referendum by a vote of 2,664 to 1,329.

On October 14, 1997, respondent board approved a bond resolution to finance "certain technology capital improvements consisting of the acquisition and installation of cabling, computers, printers, and other devices and the upgrade of electric services in all of the School District schools and facilities consistent with the District plan for technology." The resolution cites to the provision of the Local Finance Law pertaining to equipment, machinery, apparatus or furnishings and specifies a five-year period of probable usefulness and bond term (Local Finance Law "11.00[a][32] and [89]).

After realizing that the period of probable usefulness and bond term in the October 14, 1997 resolution was for five years as opposed to the intended 20-year term, respondent board adopted a supplemental bond resolution on April 7, 1998 to correct the original bond resolution. The supplemental bond resolution described the project as "certain technology capital improvements consisting of reconstruction of school buildings and facilities and the upgrade of electric services and the acquisition and installation of cabling, computers, printers, and other devices in connection therewith for such reconstruction and school uses, in all of the School District schools and facilities consistent with the District plan for technology." The supplemental resolution cited to the provision of the Local Finance Law pertaining to building reconstruction and its period of probable usefulness, increasing the potential bond term to twenty years (Local Finance Law "11.00[a][12][a]). This appeal ensued. On May 6, 1998, petitioner’s request for interim relief was denied.

Petitioner contends that the SHENet project does not include reconstruction of school buildings and, therefore, the statutory provision governing building reconstruction and its 20-year period of probable usefulness and bond term is inapplicable. Instead, petitioner argues that components of the SHENet project have a period of probable usefulness and corresponding bond term ranging from 5 to 10 years. Petitioner further submits that respondent board violated "11.00(a) of the Local Finance Law and Article VIII, "2 of the New York State Constitution by failing to compute a weighted average period of probable usefulness for SHENet for purposes of obtaining the appropriate bond term. Petitioner also submits that the public was misled because the legal notice of the election did not include the term of the bond or the term "reconstruction". Petitioner asks that I invalidate the May 7, 1997 election on the bond referendum and rescind the two SHENet implementing bond resolutions.

Respondent board maintains that the appeal should be dismissed as untimely. Respondent board further contends that the project authorized by the voters in May 1997 consists of construction and reconstruction having a period of probable usefulness of twenty years. Respondent board also submits that the bond resolution adopted in October of 1997 was erroneous, that the adoption of the supplemental bond resolution corrected the inadvertent error in the original resolution and was an appropriate exercise of its authority. Respondent Xerox Corporation failed to submit an answer in response to the petition.

Initially, I will address the procedural issues raised by respondent board. First, respondent board objects to additional factual material contained in petitioner’s reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3[a], 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Ogbunugafor, 38 Ed Dept Rep 105, Decision No. 13,994; Appeal of Catherine B., 37 id. 34, Decision No. 13,797; Appeal of Lindauer and McKee, 34 id. 596, Decision No. 13,421). Therefore, I will not consider those portions of petitioner’s reply containing new allegations and material not responsive to new material or affirmative defenses set forth in the answer.

Second, an appeal to the Commissioner must be initiated within 30 days of the decision that is the subject of the appeal unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). I will separately consider respondent board’s timeliness defense with respect to the results of the bond referendum and the two implementing bond resolutions.

This appeal was commenced on April 23, 1998 challenging, in part, the results of a bond referendum held almost one year earlier, on May 7, 1997. Petitioner submits that the public was misled because the legal notice of the election did not include the term of the bond or the word "reconstruction".Petitioner argues that respondent board’s approval of the supplemental bond resolution on April 7, 1998 excuses his delay in challenging the election results. I disagree. The bond referendum submitted to the voters and the subsequent bond resolutions approved by respondent board are separate and distinct actions that may be appealed independently from each other. Petitioner’s claim concerning the bond referendum ripened when the voters approved it on the date of the election, May 7, 1997 (Appeal of Brousseau, 37 Ed Dept Rep 295, Decision No. 13,862; Appeal of Crook, et al., 35 id. 546; Decision No. 13,628; Appeal of Romatowski, et al., 31 id. 81, Decision No. 12,575). As such, that portion of the appeal challenging the bond referendum must be dismissed as untimely.

However, I reach a contrary result with respect to the timeliness of the appeal of the implementing bond resolutions approved by the board. As set forth above, respondent board approved the initial bond resolution on October 14, 1997. This bond resolution was published on October 22, 1997 in accordance with Local Finance Law "81.00. Respondent board submits that petitioner is precluded from challenging the bond resolution under the 20-day statute of limitations period set forth in "82.00 of the Local Finance Law. However, respondent board amended the initial bond resolution on April 7, 1998 and approved a supplemental bond resolution that was not published in accordance with "81.00 of the Local Finance Law. The amended resolution changed those sections of the original resolution pertaining to the specific object and purpose to be financed pursuant to the resolution and the period of probable usefulness that governs the length of the term of the bond. Both of these items are required elements of a bond resolution pursuant to "32.00 of the Local Finance Law. Therefore, since the supplemental bond resolution was not published, I find that the Local Finance Law’s 20-day statute of limitations period does not apply in this case (Niegocki v. Town of Brookhaven, 5 AD2d 999 [2d Dept 1958]).

In addition, petitioner raises a constitutional argument to which the Local Finance Law’s 20-day statute of limitation is inapplicable (Ayers v. Greene, 132 AD2d 66 [3d Dept 1987]; Blomquist v. County of Orange, 69 Misc.2d 1077). Therefore, I find the appeal with respect to the implementing bond resolutions timely under both the regulations of the Commissioner of Education and the Local Finance Law.

Turning to the merits, even if the appeal of the bond vote were not dismissed on procedural grounds, I would dismiss it on the merits. I will not invalidate an election unless the information presented to the voters was misleading and is proven by petitioner to have affected the outcome of the vote (Appeal of Leman, 38 Ed Dept Rep 683, Decision No. 14,117; Appeal of Lombardo, 38 id. 680, Decision No. 14,116; Appeal of Community League of Garden City South, Inc., 33 id. 213, Decision No. 13,028). Where bonds are going to be issued to finance a project, the Local Finance Law requires that the notice of the election state the total cost of the items (Local Finance Law "41.10). There is no legal requirement that the notice of the election specify the term of the bonds. In any event, the record reflects that prior to the election, the public was informed that the proposition was for $6.5 million dollars to be utilized to pay for SHENet’s infrastructure via 20-year bonds. Although the legal notice did not use the term "reconstruction", the record further reflects that the voters were apprised of the nature of the SHENet project, specifically that a major part of the plan focused on infrastructure. In view of the foregoing, I cannot conclude that the voters were presented with misleading information regarding the SHENet project. Moreover, petitioner does not present any evidence that this allegedly misleading information affected the outcome of the vote. Consequently, there is no basis on which to overturn the results of the election.

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Morris, et al., 38 Ed Dept Rep 427, Decision No. 14,066; Appeal of Acme Bus Corporation, 37 id. 219, Decision No. 13,848; Appeal of McDougald, 34 id. 424, Decision No. 13,368). Petitioner provides no evidence in support of his claim that SHENet is not a reconstruction project. Instead, he makes much of the fact that the word "reconstruction" was not used in either the legal notice of the bond referendum or the initial bond resolution. I do not find this to be dispositive. The record indicates that $750,000 out of the 6.5 million dollars is directed toward furniture and equipment purchases. The remaining funds are to be directed toward building reconstruction. Based on the record before me, including a review of the bond referendum notice, the initial bond resolution, the supplemental bond resolution as well as the preliminary plans for the project, I find that the nature of the SHENet project is, and has always been, a technology building reconstruction project.

I also reject petitioner’s claim that respondent board had an obligation to calculate a weighted average period of probable usefulness for each component of the project. The Local Finance Law specifically permits the inclusion of equipment as part of a building reconstruction project within the 20-year period of probable usefulness under "11.00(a)(12)(b) of the Local Finance Law. Neither the Local Finance Law nor the State Constitution precludes the inclusion of computers as "equipment" within a renovation project (Friedman v. Board of Education of East Ramapo Central School District, 259 AD2d 464 [2d Dept 1999]).

Finally, I find that respondent board acted within its authority by approving a supplemental bond resolution to correct the error in its initial bond resolution. A failure to do so would have had tremendous unintended fiscal implications for the district.

THE APPEAL IS DISMISSED.

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