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Decision No. 15,173

Appeal of DANIEL M. DEVINE, SUE LANE, MAUREEN ESPOSITO, DAVID EHRHARDT, and ADRIAN GONZALEZ, from action of the Board of Education of the Central Islip Union Free School District regarding a proposition.

Decision No. 15,173

(February 16, 2005)

James R. Sandner, Esq., attorneys for petitioners, Catherine V. Battle and Maria Elena Gonzalez, Esqs., of counsel

Kevin A. Seaman, Esq., attorney for respondent

 

MILLS, Commissioner.--Petitioners, residents of the Central Islip Union Free School District, challenge the refusal by the Board of Education ("respondent") to place a proposition before the voters at the annual meeting. The appeal must be dismissed.

On February 18, 2004, respondent�s District Clerk received a petition to place a proposition on the May 18, 2004 ballot to increase the number of seats on the board from seven to nine ("first petition"). The petition contained a legally sufficient number of signatures and was filed pursuant to Education Law �1703.

On March 1, 2004, the District Clerk received a second petition ("second petition"), prepared and circulated by petitioners to decrease the number of board seats from seven to five. The second petition also contained a legally sufficient number of signatures, and was filed pursuant to Education Law �1703.

On March 8, 2004, at a regular meeting of the board, respondent discussed the propositions before it. After discussion in executive session, the board returned to public session and voted, by a margin of 5-2, to accept the first petition filed, and to approve the notice of annual meeting with the inclusion of notice as to the first proposition. The board then voted, by a margin of 5-2, to reject the second petition. It also voted to reject a proposal made by a board member to place both propositions on the ballot and to add a third proposition which would have allowed voters to vote affirmatively to keep the number of board seats at seven.

Pursuant to the vote of the board, the District Clerk submitted the notice of annual meeting, including the f irst proposition, to two newspapers of general circulation for publication. This appeal ensued. Petitioners� request for interim relief was denied on March 31, 2004, and petitioners� request for reconsideration was denied on April 30, 2005.

Petitioners argue that Education Law �1703(2) requires that a board of education place before the voters a proposition either to increase or decrease the number of seats on the board, as long as the petition is signed by at least 25 voters or 5% of the number of voters who voted in the previous annual election of the members of the board, whichever is greater. (Both petitions filed with the District Clerk met this requirement.) The petition seeks an order staying the annual meeting, declaring that the board�s actions were unlawful, directing the board to accept the second petition and place it on the May 2004 ballot whenever conducted, and giving notice to the voters in such manner as the Commissioner directs concerning the second proposition.

Respondent acknowledges that Education Law �1703 appears to require the acceptance of any legally sufficient petition to increase or decrease the number of board seats, but cites prior Commissioners� decisions which state that a board of education may refuse a proposition or propositions where contradictory propositions appearing on the ballot may result in ambiguity, unfeasibility, or difficulty in interpreting election results. Respondent argues that Education Law �1703 requires the vote of a majority, not merely a plurality, of qualified voters to either increase or decrease the number of seats on a board, and argues that placing propositions both to increase and to decrease board membership on the same ballot would have led to confusing results, particularly where voters were not offered a clear option to vote to keep the number of seats at seven.

The appeal must be dismissed as 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 Loveland and Hazelton, 42 Ed Dept Rep 294, Decision 14,858; Appeal of Colety, 42 id. 162, Decision 14,806). The annual meeting was conducted as scheduled on May 18, 2004, at which time the first proposition to increase the number of seats on the board was defeated by a vote of 1,572 to 361. All the relief sought in the petition was based upon my staying the annual meeting and requiring a vote on the second proposition. Since the annual meeting was not stayed and the vote was conducted, no meaningful relief is now available.

Although the appeal is dismissed on procedural grounds, I will comment on the merits for the benefit of the parties, particularly since a similar situation could arise in the future. In Appeal of Krause (27 Ed Dept Rep 57, Decision No. 11,870), the Commissioner articulated the duties and responsibilities of a board of education with respect to propositions:

The role of the board in allowing propositions to come before the voters under Education Law �3035(2) [sic] has never been merely ministerial. In Matter of Kaufman and Levine, 2 Ed Dept Rep 315, the rejection by the board of education of a proposition relating to transportation which appropriated a sum of money wholly inadequate for its purpose was upheld, although the proposition was proper in form and timely submitted under the board�s bylaws. Matter of Prout, et al., 10 Ed Dept Rep 67, and Matter of Gang, etal., 23 Ed Dept Rep 118, further illustrate the authority of a board in this context. In Prout, it was specifically held that a board of education has the power to alter the language of propositions submitted by voters to conform to law. In Gang, it was held that the right of voters to submit propositions does not include the right to require the deletion of corresponding items from the budget submitted to the voters by the board of education.

These decisions make clear that a board may not be compelled to place before the voters at an annual meeting all propositions submitted in conformity with �2035 and its bylaws, regardless of ambiguity, feasibility, or difficulty in interpreting election results when conflicting matters are voted on simultaneously. A board must exercise its independent judgment within the law to be certain that the will of the voters can be ascertained.

In Appeal of Martin (32 Ed Dept Rep 567, Decision 12,915), the Commissioner wrote:

. . . [P]etitioner's claim that respondent board was required to place his proposition as submitted to the electorate is without merit. Pursuant to Education Law �1716, it is a board of education's duty to present the voters with an annual budget. A board of education may not be compelled to place before the voters at an annual meeting all propositions submitted in conformity with �2035 and its bylaws, regardless of ambiguity, feasibility, or difficulty in interpreting election results when conflicting matters are voted on simultaneously (Matter of Prout, et al., 10 Ed Dept Rep 67; Matter of Gang, et al., 23 id. 118; Appeal of Krause, 27 id. 57). A board must exercise its independent judgment to ensure that the will of the voters can be ascertained. Placing two propositions before the electorate covering the exact same matter with two different appropriations, such as the propositions offered by petitioner and respondent board, would be confusing. Respondent board did not abuse its discretion and authority by declining to put petitioner's proposition before the voters.

In this appeal, petitioners do not contest the acceptance of the first petition by respondent, although they suggest that the second petition, which had more signatures, should have been given preference. They also do not contend that the board was required to put up a proposition of its own to allow for an affirmative vote to keep the number of board seats at seven. The appeal is instead limited to the propriety of rejecting the second petition. To succeed, petitioners must establish that the board acted arbitrarily, and they have the burden of demonstrating a clear legal right to the relief sought.

The parties agree that if the second petition seeking a decrease in the number of board seats had been the only proposition submitted to the board pursuant to Education Law �1703, the board would have been obligated to place the proposition on the ballot (Appeal of Martin, 29 Ed Dept Rep 148, Decision 12,248). However, where two competing propositions in conflict with each other are presented to the board, petitioners argue that the board�s role becomes purely ministerial, and that conflicting propositions must be presented to voters regardless of ambiguity, feasibility, or difficulty in interpreting election results. I disagree.

There can be no question that the propositions at issue are contradictory. A voter confronted with two diametrically opposite proposals, and no affirmative opportunity to keep the number of board seats at seven, would necessarily be confused. There certainly existed the possibility that a confused electorate could have approved both propositions by a majority, leaving the proper number of board seats in debate. Where boards have allowed contradictory propositions, appeals have followed (seee.g., Appeal of Board of Trustees of the George F. Johnson Memorial Library, 40 id. 331, Decision No. 14,490; Appeal of Kohilakis, 33 Ed Dept Rep 513, Decision No. 13,133). It would seem that the wiser course is to try to eliminate confusion prior to a vote (Appeal of Huber, et al., 41 Ed Dept Rep 240, Decision 14,676). As in Huber, I do not find that respondent acted arbitrarily in declining to place petitioners alternative proposition on the ballot.

The courts have been reluctant to interfere or substitute their jud gment where administrative bodies have had to choose between or among apparently equal persons or options. For example, in Matter of Bennett v. City School Dist. of New Rochelle (114 AD2d 58), the Second Department approved the use of a random lottery to select 27 participants from a pool of 109 students for a gifted education program, all of whom met the criteria for participation, but could not all be accommodated.

In Matter of Schoenfeld v. BOCES of Nassau County (98 AD2d 723), the Second Department scrutinized a multi-level system for establishing relative seniority of teachers. The court found the system to be rational, and said:

In Matter of Sommers [19 Ed Dept Rep 99] the Commissioner of Education held that a board of education may determine a means by which to establish the relative seniority of teachers. If the system used by the board is reasonable, the seniority determination will not be set aside. Clearly, the method of determining seniority promulgated by BOCES was reasonable. The criteria used and priorities set among those criteria constituted a rational process sufficient to eliminate subjective determinations.

In Eisbruck v. New York State Educ. Dept. (137 Misc 2d 241), Supreme Court considered the tie-breaking process used by the State Education Department with respect to the awarding of Empire State Scholarships of Excellence. The court dismissed the petition and said, "The applicable standard in reviewing a determination of the Commissioner of Education is whether it is arbitrary or capricious (Matter of Chauvel v. Nyguist, 43 NY2d 48). The role of the judiciary is thus drastically limited." The same standard is applicable in my review of respondent�s actions in this appeal.

Respondent has complied with prior Commissioner�s Decisions, and its decision to accept the petition filed first and reject the second is not arbitrary. I have considered the parties� other arguments and find that they lack merit.

THE APPEAL IS DISMISSED.

END OF FILE