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Decision No. 14,858

Appeal of CHARLES R. LOVELAND and DAVID HAZELTON from action of the Board of Education of the Brocton Central School District regarding a voter proposition.

 

 

(April 16, 2003)

 

Charles R. Loveland, Esq., attorney for petitioner 

Hodgson, Russ LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel 

MILLS, Commissioner.--Petitioners challenge the denial by the Board of Education of the Brocton Central School District ("respondent") of their request to place a proposition on the ballot at the May 21, 2002 district election.  The appeal must be dismissed.

On June 22, 2000, district voters approved a proposition authorizing respondent to expend $21.2 million for school building additions, alterations and improvements and for construction of a school bus garage.  The approved proposition stated:

RESOLVED:

(a) That the Board of Education of the Brocton Central School District in the County of Chautaugua, New York (the "District"), is hereby authorized to (i) construct additions, alterations and improvements to the Brocton Central School building and (ii) construct a new bus garage, and to expend therefore an amount not to exceed $21,200,000; (b) that a tax is hereby voted therefore in the amount of not to exceed $21,200,000 to finance such cost, such tax to be levied and collected in installments in such years and in such amounts as shall be determined by said Board of Education; and (c) that in anticipation of said tax, bonds of the District are hereby authorized to be issued in the aggregate principal amount of not to exceed $21,200,000 and a tax is hereby voted to pay the interest on said bonds as the same shall become due and payable.

On March 22, 2002, petitioner Loveland requested a copy of respondent"s policy regarding the submission of propositions.  By letter dated March 26, 2002, respondent"s superintendent mailed the policy to petitioner.  The superintendent pointed out that, while the policy states that petitions relating to the annual election must be submitted 30 days in advance of the election, the Education Law establishes a different requirement for certain propositions.  He explained that certain propositions must appear in the district"s notice of annual meeting, and that such propositions would have to be submitted before the deadline for publishing the notice, at least 45 days prior to the election (Education Law ""2004[1] and 2035[2]).  The letter also informed petitioner that the district"s notice of annual meeting would first be published on April 6, 2002.

On April 20, 2002, petitioner Hazelton filed a petition with respondent containing petitioner Loveland"s signature along with the signatures of 43 other district voters.  The petition requested that respondent place the following proposition on the May 21, 2002 ballot:

Resolved that pursuant to the power of district votes {sic} set forth in Education Law section 2021(14.) the vote of approval for new construction and reconstruction of the buildings on the school grounds at an estimated cost in excess of 19 million dollars be rescinded.

On May 2, 2002, respondent denied petitioners" request to place the proposition on the ballot on the grounds that it was untimely and ambiguous and because respondent had already entered into various contractual obligations and expended funds to implement the project.  This appeal ensued.  Petitioners" request for interim relief was denied on May 20,2002.

     Petitioners contend that the proposition did not need to be included in the notice of annual meeting because it did not seek rescission of the borrowing authority granted by the voters, but merely sought to rescind the approval of the construction project.  Petitioners also assert that respondent violated Education Law ""408(1) and (4) by spending in excess of $100,000 on the project prior to approval by the State Education Department.  Petitioners request that respondent be directed to place the proposition on the ballot at the May 21, 2002 annual election.  Petitioners also request that members of respondent be held individually liable for sums expended in excess of $100,000 and that the school district"s obligation to repay such sums be declared null and void.

     Respondent contends that it properly rejected the proposed proposition.  Respondent further states that the appeal is moot because the May 21, 2002 election has been held.  Respondent argues that petitioners have failed to state a claim upon which relief may be granted and that petitioners have failed to join the individual board members as necessary parties.  Respondent alleges that petitioners" claims regarding expenditures and the scope of the project are untimely.  Respondent asserts that it properly retained the services of a financial consultant and a bond attorney to carry out the project.

To the extent petitioners seek to place the proposition on the May 21, 2002 ballot, the appeal is moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Reynolds, 42 Ed Dept Rep ___, Decision No. 14,834; Appeal of N.S., 42 id. __, Decision No. 14,817; Appeal of R.R. and K.R., 41 id. __, Decision No. 14,726).  Because the May 21, 2002 meeting has already been held, the appeal must be dismissed as moot.

To the extent petitioners seek to hold the individual members of respondent liable for expenditures allegedly made in violation of Education Law "408, the claim must be dismissed for failure to join the individual board members as respondents.  A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Monahan, 42 Ed Dept Rep __, Decision No. 14,824; Appeal of Holliday, 40 id. 534, Decision No. 14,549; Appeal of Heller, 38 id. 335, Decision No. 14,048).  Joinder requires that an individual be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform that individual that he or she should respond to the petition and enter a defense (Appeal of Monahan, supra; Appeal of Holliday, supra; Appeal of Heller, supra).  In the instant appeal, petitioners failed to name the individual board members as respondents in the caption of the petition, despite the fact that petitioners seek to hold the individual members financially liable for certain expenditures.  Petitioners similarly failed to serve any of the board members with a notice of petition or petition.  The claim that individual members are personally liable for certain expenditures must, therefore, be dismissed for failure to join necessary parties (Appeal of Monahan, supra; Appeal of Heller, supra).  Furthermore, the Commissioner has no authority to award monetary damages or reimbursements in an appeal brought pursuant to Education Law "310 (Appeal of D.H., 39 Ed Dept Rep 721, Decision No. 14,360; Appeal of Calhoun, 38 id. 542, Decision No. 14,089).

     In light of this disposition, I need not address the parties" remaining contentions.

 

THE APPEAL IS DISMISSED.

END OF FILE