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Decision No. 15,376

Appeals of EDWARD H. CIFFONE and GILBERT KAUFMANN from actions of the Board of Education of the Yorktown Central School District regarding voter propositions.

Decision No. 15,376

(March 9, 2006)

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

MILLS, Commissioner.--In two separate appeals, petitioners challenge the decision of the Board of Education of the Yorktown Central School District ("respondent") to reject certain voter petitions. Because the appeals raise similar issues of law and fact, they are consolidated for decision. The appeals must be dismissed.

In March 2005, respondent's district clerk was served with two petitions, with the requisite number of signatures, requesting that respondent place two separate propositions on the ballot at the district's May 17, 2005 annual election. The first proposition ("the Ciffone proposition") sought to add a policy to the district's Policy Manual to allot the public at least one-half hour for comments and questions at every public board meeting. The proposition further provided that the policy could be modified or rescinded only by a majority vote on a proposition on the ballot at an annual meeting. The second proposition ("the Kaufmann proposition") sought the construction of additional classrooms at two district elementary schools, for the purpose of providing space for a full-day kindergarten program, and the authorization for respondent to sell bonds up to $5 million for the project.

On March 21, 2005, respondent decided that it would be "inappropriate" to place the propositions before the voters and declined to put the propositions on the May ballot. These appeals ensued. Each petitioner's request for interim relief was denied on May 3, 2005.

Petitioners contend that the propositions conform to respondent's Policy 1050.1 and therefore, that respondent improperly rejected the petitions when it declined to place the propositions on the ballot. Petitioners also object to the procedure whereby respondent considered and rejected the propositions. Petitioners request that I reverse respondent's decision and that I order respondent to conduct a special district meeting to consider the propositions.

Respondent contends that it properly rejected the petitions because, in both cases, their purposes are matters within respondent's discretion, not that of the voters.

I must first address a procedural issue. 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 Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Therefore, while I have reviewed each 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.

Turning to the merits, respondent's Policy 1050.1 states that propositions submitted in accordance with the policy will be placed on the ballot except for any proposition "which is within the exclusive province of the Board, or otherwise forbidden by law." This is consistent with Education Law �2035, which states that "any proposition may be rejected . . . if the purpose of the proposition is not within the power of the voters" (seealsoAppeal of Johnson, 44 Ed Dept Rep 382, Decision No. 15,206; Appeal of Lawson, 36 id. 450, Decision No. 13,774; Appeals of Cappa, 36 id. 278, Decision No. 13,724).

I will first address the Ciffone proposition to require a public comment period at a board meeting. A board of education should, whenever possible, listen to the public and provide channels of communication through which the public may express opinions (seeAppeal of Michalski, et al., 33 Ed Dept Rep 505, Decision No. 13,130). However, a board has the right to control its agenda, and there is no statutory mandate that requires a board to permit public input at its meetings (Education Law �1708; Appeal of Michalski, et al., 33 Ed Dept Rep 505, Decision No. 13,130; Matter of Thomas, et al., 10 id. 108, Decision No. 8223; Matter of Kramer, et al., 72 St Dept Rep 114, Case No. 5632). Therefore, respondent did not act arbitrarily or capriciously by rejecting the Ciffone proposition.

With regard to the Kaufmann proposition, Kaufmann concedes that in accordance with Education Law �1709(3), respondent has the power and duty to "prescribe the course of study by which the pupils of the schools shall be graded and classified . . . ." He claims, however, that nothing in the voter proposition attempts to establish a full-day kindergarten or to prescribe the course of study of kindergarten students, but rather, the proposition addresses only the construction costs and the buildings affected. I disagree. The proposition is clearly connected to the establishment of a full-day kindergarten program, a matter within respondent 's discretion. Respondent, therefore, did not act arbitrarily or capriciously by rejecting the Kaufmann proposition.

Both petitioners also object to the manner in which the propositions were rejected. Specifically, they object that the prepared agenda for respondent's March 21, 2005 meeting did not include the voter petitions or the subsequent resolution whether to place the propositions on the ballot. While many boards prepare agendas, they are not legally required to do so (seeAppeal of Michalski, et al., 33 Ed Dept Rep 505, Decision No. 13,130; Appeal of Martin, 32 id. 381, Decision No. 12,861; Matter of Kramer, et al., 72 St Dept Rep 114, Case No. 5632).

THE APPEALS ARE DISMISSED.

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