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Decision No. 15,002

Appeal of the BEAVER FALLS LIBRARY from action of the Board of Education of the Beaver River Central School District regarding the conduct of an election.

 

 

(December 12, 2003)

 

Conboy, McKay, Bachman & Kendall, LLP, attorneys for petitioner, Stephen W. Gebo, Esq., of counsel

 

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Beaver River Central School District ("respondent") to place a library funding proposition on the ballot at the district"s 2003 annual election.  The appeal must be sustained.

The Beaver Falls Library ("petitioner" or "library") is a free association library located within respondent"s school district.  Pursuant to a request by petitioner, respondent placed a proposition on the ballot at its May 2001 annual election seeking voter approval to collect $10,000 annually in taxes to fund the library.  The proposition, which was approved by district voters, authorized respondent "to levy taxes annually in the amount of $10,000 for the Beaver Falls Library and to pay over such money to the trustees of said organization."  Respondent subsequently levied taxes in the amount of $10,000 and provided the funding to petitioner during the 2001-2002 and 2002-2003 school years.

     Although district voters had approved a $10,000 annual appropriation to petitioner in May 2001, respondent placed this proposition on the ballot at the district"s 2003 annual election:

That the Board of Education of Beaver River Central School District at Beaver Falls, County of Lewis, is hereby authorized by voter approval and by formal motion to levy the necessary tax in the amount of $10,000 for the Beaver Falls Public [sic] Library and to pay over such money to the trustees of said organization.

The proposition was defeated.  This appeal ensued.

     Petitioner maintains that respondent improperly placed the library funding proposition on the ballot at the 2003 annual election.  It alleges that because voters had approved a $10,000 annual appropriation at respondent"s May 2001 election, respondent did not need voter approval to continue to levy $10,000 annually for the library.  Petitioner further alleges that the proposition was not endorsed by the library"s board of trustees and that the language of the proposition printed on the ballot differed from that contained in notices, which limited the appropriation to the 2003-2004 fiscal year.  Petitioner requests that I void the election results or order a new election.

     Preliminarily, it should be noted that respondent failed to answer the petition.  Accordingly, the allegations therein are deemed to be true (8 NYCRR "275.11; Appeal of Adamitis, 38 Ed Dept Rep 765, Decision No. 14,137; Appeal of Cassin, 33 Ed Dept Rep 392, Decision No.13,090).

The appeal must be sustained.  Education Law "259(1)(a) provides, in pertinent part:

Taxes, in addition to those otherwise authorized, may be voted for library purposes by any authority named in section two hundred fifty-five of this part and shall, unless otherwise directed by such vote, be considered as annual appropriations therefor until changed by further vote and shall be levied and collected yearly, or as directed, as are other general taxes.  In the case of a school district the appropriation for library purposes shall be submitted to the voters of the district in a separate resolution and shall not be submitted as part of the appropriation of the necessary funds to meet the estimated expenditures of the school district.

Thus, once district voters approve the levy of taxes for library purposes, such taxes remain in effect each year, without annual voter approval, until altered in a subsequent proposition (Appeal of Cole, et al., 37 Ed Dept Rep 407, Decision No. 13,891; Opinion St. Compt. 70-471).  Because district voters approved a $10,000 annual appropriation to petitioner in May 2001, respondent did not need voter approval at the 2003 annual election to appropriate $10,000 to petitioner.

Further, there is no evidence in the record that respondent received a petition in proper form or a request from petitioner to place the proposition on the ballot.  A school board is required to place a library funding proposition on the ballot when requested to do so by a free association library (Op. State Compt. 81-167; Appeal of the Board of Trustees of the Earlville Free Library, 30 Ed Dept Rep 172, Decision No. 12,423).  These decisions imply that a board of education cannot act without such a request.  Indeed, there is no express statutory provision that authorizes unilateral action by a board of education.  Therefore, I find that a school board lacks authority to unilaterally place a library funding proposition on the ballot unless it receives a request from the library board or a proper petition from district residents to do so (see, Education Law "2008[2]).  Accordingly, the results of the 2003 library funding proposition must be set aside.

Even if respondent had received a proper request, it erred by placing the proposition on the ballot because it was ambiguous, and therefore, the will of the voters could not be readily ascertained (see, Appeal of Huber, et al., 41 Ed Dept Rep 240, Decision No. 14,676, Huber, et al. v. Mills, et al., Supreme Court, Albany County, Special Term; Spargo, J.; Judgment granted dismissing petition to review; January 7, 2003; Appeal of Welch, 16 id. 397, Decision No. 9444).  Given that voters had already approved a $10,000 annual appropriation to petitioner in May 2001, it is unclear whether the May 2003 proposition was intended to ask voters to discontinue the library funding (in which case, the proposition should have clearly indicated that), or whether voters were being asked to approve an additional $10,000 in library funding.  In the latter event, the rejection of the 2003 proposition would not have the effect of repealing the earlier appropriation unless explicitly stated (Op. State Compt. 70-471).

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that the results of the library referendum held at the 2003 annual election are hereby annulled.

IT IS FURTHER ORDERED that respondent levy taxes yearly in the amount of $10,000 to fund the Beaver Falls Library unless and until the appropriation is altered by further vote.

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