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Decision No. 14,900

Appeal of HOWARD A. SHAFER from action of the Board of Education of the Ravena-Coeymans-Selkirk Central School District and Leonard Bus Sales, Inc. regarding a school bus lease.

 

Decision No. 14,900

 

(July 21, 2003)

 

McCary & Huff, L.L.P., attorneys for respondent board, Kathryn McCary, Esq., of counsel 

Coughlin & Gerhart, L.L.P., attorneys for respondent bus company, Mark S. Gorgos, Esq., of counsel 

MILLS, Commissioner.--Petitioner challenges action taken by the Board of Education of the Ravena-Coeymans-Selkirk Central School District ("respondent board") regarding a school bus lease.  The appeal must be dismissed.

At the district"s May 2002 annual election, respondent board placed a proposition before the voters:

RESOLVED: That the Board of Education of Ravena-Coeymans-Selkirk Central School District, in the Counties of Albany and Greene is hereby authorized and directed to lease (4) school buses and expend therefore an annual sum not exceeding 43,600 dollars and to levy the necessary tax therefore and to issue obligations in anticipation of the collection of taxes in accordance with Education Law and Local Finance Law.

On May 21, 2002, the voters approved the proposition and in October 2002, respondent board entered into an agreement with Leonard Bus Sales, Inc. ("respondent bus company") to lease four school buses over a five-year term.

Petitioner contends that the May 2002 proposition should have contained the total cost of the lease and the lease term.  Petitioner seeks an order invalidating the May 2002 election and requests a revote on the issue with prior notice to the voters regarding the term and total cost of the lease.    

Respondent board denies that there were any irregularities in the conduct of the election and seeks to have the petition dismissed in its entirety.

By letter dated November 20, 2002, respondent board was directed to submit to my Office of Counsel copies of the proposition, the lease and the notice of the annual election pursuant to "276.5 of the Commissioner"s regulations.  By letter dated December 10, 2002, respondent board submitted the requested information.

By letter dated February 18, 2003, petitioner was directed to join respondent bus company as a necessary party pursuant to "275.1 of the Commissioner"s regulations.  Petitioner promptly did so, serving all of the papers submitted in the appeal on respondent bus company on March 4, 2003.

In its answer respondent bus company contends, among other things, that a board of education has broad discretion in determining the form of a proposition and that the law does not require a bus lease proposition to include the total cost of the lease or the lease term.

By letter dated June 19, 2003, respondent"s attorney notified my Office of Counsel that at the district"s annual meeting on June 3, 2003, the voters approved a proposition authorizing respondent board to renew and/or continue the existing lease with respondent bus company for the use of four school buses, for four additional years at an annual cost of $41,370.  As a result thereof, respondent board contends that the appeal is now moot.

I will first address a procedural issue.  The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14).  It is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Gehl, et al., 42 Ed Dept Rep ___, Decision No. 14,857; Appeal of Karpen, 40 id. 199, Decision No. 14,460; Appeal of Crowley, et al., 39 id. 665, Decision No. 14,345).  In his reply petitioner has attempted, improperly, to buttress allegations in his petition.  Accordingly, I have not considered petitioner"s reply in reaching a decision in this appeal.

Petitioner"s request to invalidate the May 2002 election is denied.  To invalidate the results of an election petitioner must establish not only that irregularities occurred, but also that any irregularities actually affected the outcome of the election (Matter of Boyes, et al. v. Allen, et al., 32 AD2d 990, aff"d 26 NY2d 709; Appeal of Grant, 42 Ed Dept Rep ___, Decision No. 14,816; Appeal of Huber, et al., 41 id. 240, Decision No. 14,676) were so pervasive that they vitiated the electoral process (Appeal of Meyer, et al., 40 Ed Dept Rep 34, Decision No. 14,413; Appeal of Roberts, 33 id. 601, Decision No. 13,162) or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law (Appeal of Grant, supra; Appeal of Huber, supra). Petitioner"s only contention is that the May 2002 proposition that was submitted to the voters was misleading.  I disagree.  The proposition clearly provided respondent board with the authority to lease four school buses at a cost of $43,600.  I decline to invalidate the results of the election and find that the voters' approval of the May 2002 proposition provided respondent board with the authority to enter into an agreement to lease four buses for a one-year term.

However, I note that respondent board went beyond this authority and entered into a five-year lease with respondent bus company.  Education Law "1709(25)(i) authorizes a board of education to lease motor vehicles to be used for student transportation from sources other than a school district, board of cooperative educational services or county vocational education and extension board.  This authority, however, is not without limits.  Education Law "1709(25)(i) further provides:

No such agreement for the lease of a motor vehicle or vehicles shall be for a term of more than one school year, provided that when authorized by a vote of the qualified voters of the district such lease may have a term of up to five years.

An examination of the legislative history of Education Law "1709(25)(i) underscores the requirement of voter approval for multi-year bus leases.  In his June 26, 1998 sponsoring memorandum to add a new paragraph (i) to subdivision 25 of Education Law "1709, Senator Jess J. Present noted: "It is my understanding that school district voters will not be left out of this process, as this bill authorizes school boards to enter into lease agreements for only one year or less without voter approval.  Thus the bill provides that a lease agreement of more than one year would still require prior voter approval" (emphasis added) (Mem. in Support, Bill Jacket, L. 1998, Ch. 472, at 3).

There is no evidence in the record before me with respect to the May 2002 proposition that the voters were aware that respondent board intended to enter into a multi-year lease.  The language of the May 2002 proposition is silent on the issue and cannot be construed to extend authority beyond a one-year term.  The fact that the lease contains an executory clause requiring respondent board to seek appropriations to pay for the cost of the lease in subsequent years is of no consequence.  The legislative history clearly indicates that voter approval of a multi-year lease must occur prior to entering into a multi-year lease.  Entry into a multi-year lease without clear voter approval is simply inconsistent with the language and intent of Education Law "1709(25)(i).  This defect is not remedied by listing proposed appropriations for lease payments in subsequent annual budgets.

However, 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 K.M., 41 Ed Dept Rep 318, Decision No. 14,699; Appeal of N.B., 40 id. 515, Decision No. 14,542; Appeal of N.C., 40 id. 445, Decision No. 14,522).  Here the voters, at the June 2003 annual meeting, approved a proposition providing respondent board with the authority to renew and/or continue the lease for four additional years at an annual cost of $41,370.  Therefore, since the issue raised in this appeal has been resolved, petitioner"s objection to the multi-year contract with respondent bus company is now moot (Appeal of K.M., supra; Appeal of D.C., 41 Ed Dept Rep 277, Decision No. 14,684; Appeal of Camille S., 39 id. 574, Decision No. 14,316).

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

 

THE APPEAL IS DISMISSED.

END OF FILE