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Decision No. 15,206

Appeal of GLEN W. JOHNSON from action of the Board of Education of the Yorktown Central School District regarding the rejection of a voter petition.

Decision No. 15,206

(April 13, 2005)

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Yorktown Central School District ("respondent") rejecting a petition to place a proposition on the ballot at the district's May 2004 annual election. The appeal must be dismissed.

In March 2000, district voters approved a proposition authorizing construction of additions to and renovations of the district's school buildings at a cost not to exceed $33,695,225. The text of the original proposition provided, in pertinent part:

(a) That [respondent] is hereby authorized to undertake a school building improvement project (the "Project") . . . consisting of the construction of additions and/or improvements and renovations at all District school buildings and sites thereof to accommodate existing programs and to provide for projected enrollment increase, including (as and where required) construction of building additions to provide new classrooms, library, computer, art, special education, science, cafeteria and circulation space; . . . interior reconstruction and space reconfiguration; . . . and to expend therefor, . . . an amount not to exceed the estimated aggregate maximum cost of $33,695,225; provided that the detailed costs of the components of the Project as set forth in the Report may be reallocated among such components if the Board of Education shall determine that such reallocation is in the best interests of the District provided, however, that the aggregate amount to be expended shall not exceed the $33,695,225 estimated maximum cost of the Project and that no material change shall be made in the scope of the project . . . (emphasis added)

In June 2003, voters approved a proposition authorizing an additional amount not to exceed $5,205,000 to cover unanticipated cost increases. Although not explicitly referenced in the March 2000 proposition, respondent's initial plans included renovating space in the district's high school library to house its administrative offices. However, due to cost overruns, respondent was forced to prioritize various portions of the project. After considering the recommendations of the district's facilities committee, respondent chose not to renovate the library space for the district's administrative offices, and instead, leased space in a non-district owned facility for that purpose. This decision was apparently prompted, in part, by respondent's assessment that additional classroom space in the high school was a greater priority.

In early March 2004, the district clerk was served with a petition with the requisite number of signatures requesting that respondent place a proposition on the ballot at the district's May 18, 2004 annual election. The proposition sought to direct respondent to move the district's administrative offices from the leased location to the high school library, as envisioned under the original capital bond referendum authorized in 2000.

At respondent's March 29, 2004 meeting, a motion to place the proposition on the ballot failed by a vote of 1 to 3. This appeal ensued. Petitioner's request for interim relief was denied on May 7, 2004.

Petitioner contends that respondent improperly rejected the petition to place the proposition on the ballot and failed to timely act on the petition. Petitioner requests, among other things, that I order respondent to conduct a special district meeting to consider the proposition.

Respondent contends that it properly rejected the petition because the decision where to house district administrative offices is a matter within respondent's discretion.

Pursuant to �276.4 of the Commissioner's regulations, respondent was required to serve its memorandum of law within 30 days after service of its answer. Respondent served its answer on May 24, 2004 but did not submit its memorandum until July 2, 2004. While the Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR �276.4[a]), respondent has shown neither in this appeal.  Therefore, I have not considered respondent's memorandum of law.

The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Goldin, 43 Ed Dept Rep 20, Decision No. 14,904; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Petitioner submitted a lengthy reply that mainly reargues the points made in the petition. While I have reviewed petitioner' s reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed as moot. The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of E.M., 44 Ed Dept Rep 156, Decision No. 15,130). At a special district meeting held on October 13, 2004, district voters approved, by a vote of 651 to 337, a proposition funding an addition to the district's high school and renovation of the high school library for use as administrative offices (see, Appeals of Ciffone and Kauffman, 44 Ed Dept Rep ___, Decision No. 15,199, dated April 6, 2005). The approval of this most recent proposition accomplishes the exact purpose underlying the petition rejected by respondent in March 2004. Accordingly, there is no further relief I can afford petitioner.

Even if the appeal were not dismissed as moot, it would be dismissed on the merits. A board need not present all propositions submitted to it (Appeal of Osten, 35 Ed Dept Rep 160, Decision No. 13,500) and may refuse to place a proposition before the voters where the matter is not within the voters' discretion (Education Law �2035; Appeal of Lawson, 36 Ed Dept Rep 450, Decision No. 13,774; Appeals of Cappa, 36 id. 278, Decision No. 13,724). Decisions concerning the use of school facilities are within the discretion of the board of education (Education Law �1709[7], [9] and [33]; Appeal of Rosenberg, 31 Ed Dept Rep 398, Decision No. 12,680).

Furthermore, the March 2000 proposition explicitly vested respondent with the discretion to reallocate costs among various components of the project, provided that the total cost did not exceed the amount authorized by district voters. Accordingly, respondent's decision to forego renovations to the library space at that time, and instead, to lease space for its administrative offices, was within its discretion. Respondent therefore did not act arbitrarily or capriciously by rejecting the petition on the grounds that the proposition addressed a matter not within the power of the voters.

Moreover, contrary to petitioner's assertion, respondent properly considered and rejected the petition at its March 29, 2004 meeting. To conduct business, respondent must have a quorum, a simple majority of the total number of board members. To take any official action, it must have the vote of a majority of the total number of board members (General Construction Law �41; Opinion of Counsel No. 70, 1 Ed Dept Rep 770). The record reflects that four of the district's seven board members, a quorum, were present when the motion to place the proposition on the ballot was presented, but, in order for the motion to have passed, all four members would have had to have voted in favor of the motion. In this case, however, the motion was defeated by a vote of 1 to 3. Thus, because a majority of the board did not approve placing the proposition on the ballot, respondent properly declined to do so.

In light of this disposition, I need not address the parties' remaining arguments.

THE APPEAL IS DISMISSED.

END OF FILE