Appeal of DAN FARCASIU from action of the Board of Education of the Roslyn Union Free School District regarding a transportation referendum.

Decision No. 15,221

(May 12, 2005)

Ingerman Smith, LLP, attorneys for respondent, Carrie E. Flynn, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Roslyn Union Free School District ("respondent") regarding a transportation budget referendum. The appeal must be dismissed.

On May 18, 2004, respondent's proposed budget and a transportation proposition were defeated. The transportation proposition would have continued reduced distance eligibility for student transportation. On June 23, 2004, respondent decided to hold another budget vote and transportation referendum on July 13, 2004. The proposed transportation proposition stated that the budgetary impact of the continuation was $80,000. At respondent's meeting of July 6, petitioner questioned the method used to arrive at that amount and requested that respondent delay the referendum until an analysis of the cost was completed. Respondent moved forward with the referendum and this appeal ensued. Petitioner's request for interim relief was denied on July 12, 2004.

Petitioner contends that the actual cost of the transportation proposition is significantly higher than $80,000. He argues that information presented by respondent at its May 26, 2004 meeting indicated a reduction of $335,000 in equipment costs if there were no transportation referendum. Petitioner requests that respondent be required to recalculate the costs of the referendum, that all data and procedures used to arrive at that figure be made public and that the referendum vote be delayed until that information is released.

Respondent asserts that they have already fully examined the costs of providing the continued transportation and that those costs were accurately reflected in the transportation referendum. Respondent states that the $335,000 figure was initially listed as a potential savings to reflect the possibility of delaying the replacement of buses if there were no transportation referendum. Respondent also states that the $335,000 figure was properly included in the proposed budget presented to the voters on July 13, 2004. Respondent contends that the $80,000 figure reflects the costs of operating the two additional buses needed to provide the additional transportation. Respondent further alleges that State Education Department staff were consulted when the referendum was drafted, that respondent has acted in good faith, and that the voters were provided with complete and accurate information. Respondent also argues that the appeal should be dismissed as moot.

Initially, I must address the contents of petitioner's reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in an 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 Passer, 44 Ed Dept Rep __, Decision No. 15,164; Appeal of General, 43 id. 146, Decision No. 14,948).  Petitioner's reply contains numerous calculations, graphs and arguments that should have been included with the petition. Therefore, 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 to the extent that petitioner requested a delay of the transportation referendum. 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 Passer, 44 Ed Dept Rep __, Decision No. 15,160; Appeal of Loveland and Hazelton, 42 id. 294, Decision 14,858; Appeal of Colety, et al., 42 id. 162, Decision 14,806). The vote was held on July 13, 2004 and the transportation proposition was passed.

The appeal must be dismissed on the merits. In an appeal to the Commissioner of Education, petitioner has the burden of demonstrating a clear right to the relief requested (8 NYCRR �275.10) and the burden of establishing the facts upon which he seeks relief (Application of Bean, 42 Ed Dept Rep 171, Decision No. 14,810; Application of Lilker, 40 id. 704, Decision No. 14,588). Petitioner has not provided any evidence establishing that respondent miscalculated the additional transportation costs associated with the reduced distance eligibility. Nor has petitioner cited any legal authority that would dictate that respondent place equipment costs in the transportation referendum.

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

THE APPEAL IS DISMISSED.

END OF FILE