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Decision No. 14,814

Appeal of ELLIOTT C. WINOGRAD, LAWRENCE QUINN, JR. and FRANCIS A. COSGROVE from actions of the Board of Education of the Rockville Centre Union Free School District regarding a referendum.

Decision 14,814

(October 24, 2002)

Brand, Brand & Burke, attorneys for petitioners, Ronald C. Burke, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Jonathan Heidelberger, Esq., of counsel

Petitioners challenge the authorization by the Board of Education of the Rockville Centre Union Free School District ("respondent") of a referendum on the purchase of real property. They allege that the referendum was not conducted properly. The appeal must be dismissed.

At its February 26, 2002 meeting, respondent resolved to schedule a special meeting for April 18, 2002. The special meeting was to conduct a referendum on the proposed purchase of property located at 79 Maple Avenue in Rockville Centre. The district clerk then arranged for notice of the special meeting to be published in one local newspaper on March 1, 2002 and three later dates. This appeal ensued. Petitioners requested I enjoin respondent from conducting the referendum scheduled for April 18, 2002, nullify any affirmative vote by district voters on that referendum and enjoin respondent from purchasing the property. Petitioners" request for interim relief was denied on April 17, 2002.

At the April 18, 2002 special meeting, district voters approved the purchase by a vote of 1490 to 481. Subsequently, respondent purchased the property.

Petitioners allege that respondent adopted the resolution scheduling the special meeting without publicly disclosing its terms. They also assert that respondent willfully violated the Education Law when it published notice of the special meeting in only one local newspaper rather than two. Finally, petitioners contend that respondent attempted to minimize public awareness of and participation in the referendum.

Respondent argues that it properly adopted the resolution in a public meeting and that it did not publicly discuss the terms of the proposed purchase because it did not want other parties to outbid it. Respondent also maintains that its publication of the notice in one newspaper was legally sufficient. Respondent further contends that it extensively publicized the referendum and its reasons for seeking authority to purchase the property.

The appeal must be dismissed as moot. The Commissioner of Education will decide only matters in actual controversy and will not render a decision upon a state of facts which no longer exists or a controversy which subsequent events have laid to rest (Appeal of Martin, 41 Ed Dept Rep __, Decision No. 14,605; Appeal of June D., 38 id. 596, Decision No. 14,101). This is especially true when petitioner has sought interim relief as to all or most of his claim and that relief has been denied (Appeal of Martin, supra). Petitioners sought to enjoin respondent from conducting the referendum scheduled for April 18, 2002, nullify any affirmative vote of district voters on that referendum and enjoin respondent from purchasing the property. Because the referendum has been conducted, the voters have approved the purchase and the district now owns the property, it is no longer possible to grant the specific relief requested by petitioners.

Even if the appeal were not dismissed as moot, it would be dismissed on the merits. Petitioners claim that respondent discussed the terms of the February 26, 2002 resolution at an executive rather than a public session of the board. This issue is governed by the Open Meetings Law. Public Officers Law "107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Lilker, 40 Ed Dept Rep 305, Decision No. 14,486; Appeal of Instone-Noonan, 39 id. 413, Decision No. 14,275). Therefore, this claim must be dismissed for lack of jurisdiction.

Petitioners" assertion that respondent published notice of the special meeting in only one newspaper is equally unavailing. Education Law "2010 provides:

The proceedings of no district meeting, annual or special, shall be held illegal for want of a due notice to all the persons qualified to vote thereat, unless it shall appear that the omission to give such notice was wilful and fraudulent.

Thus, to invalidate the referendum, petitioners must show that respondent's failure to publish the notice in a second newspaper was willful and fraudulent or that the vote failed to reflect the will of the voters (Appeal of Bartosik, 37 Ed Dept Rep 541, Decision No. 13,922; Appeal of Tumilowicz, 32 id. 414, Decision No. 12,871; Appeal of Bayly and Rogers, 30 id. 442, Decision No. 12,527). Where the notice given is reasonably calculated to and effectively does give notice to the public of the election, a technical failure to give proper notice is not a basis for invalidating an election result (Appeal of Bartosik, supra). Here, it appears that respondent's efforts to provide notice to district residents through publication, posting and mailing were reasonably calculated to provide notice of the vote. There is no evidence that such efforts did not provide effective notice to the public or that the vote failed to reflect the will of the voters due to a deficiency in the notice provided.

I have considered petitioners" remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE