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Decision No. 16,151

Appeal of HARALD G. STEUDTE from action of the Board of Trustees of the Tuckahoe Common School District regarding a special district meeting.

Decision No. 16,151

(September 9, 2010)

Kevin A. Seaman, Esq., attorney for respondent

STEINER, Commissioner.--Petitioner appeals the refusal of the Board of Trustees of the Tuckahoe Common School District (“respondent”) to call a special district meeting to establish a union free school district pursuant to Education Law §1522.  The appeal must be dismissed.

Petitioner is a resident of respondent’s district and one of 37 signatories to a petition submitted to respondent pursuant to Education Law §1522 requesting that respondent hold a special district meeting to determine whether a union free school district should be established (“request”).  The request, submitted to the district clerk on or about January 29, 2010, was presented to respondent at its February 8, 2010 meeting and rejected after a majority of the trustees determined that it “was not in keeping with the intent” of Education Law §1522.  This appeal ensued.

Petitioner seeks an order directing a special meeting of district voters on the referendum pursuant to Education Law §1522.  Respondent contends that petitioner seeks to establish a union free school district solely to “establish a new governing body” for the district, that this is not a purpose authorized by Education Law §1522 and, therefore, dismissal is warranted.

Petitioner attempts to bring this appeal “on behalf of Tuckahoe CSD Petitioners.”  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Appeal of Manes, 46 id. 419, Decision No. 15,551; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Appeal of Manes, 46 id. 419, Decision No. 15,551; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  Petitioner has not demonstrated that the purported class of 37 individuals is too numerous to join.  He also has not addressed whether all questions of law and fact would be common to all members of the purported class.  Class status, therefore, is denied.

I note that both parties submit several newspaper articles to support their respective positions.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Wachala, 49 Ed Dept Rep 31, Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision No. 15,826; Application of Coleman, 45 id. 282, Decision No. 15,324).  Therefore, I have not considered such articles for the veracity of their content.

Turning to the merits, Education Law §1522(1) provides, in pertinent part:

Whenever fifteen persons entitled to vote at any meeting of the inhabitants of any common school district ... shall sign a request for a meeting, to be held for the purpose of determining whether a union free school district shall be established therein in conformity with the provisions of this article, it shall be the duty of the trustees of such district, within ten days after such request shall have been presented to them, to give public notice that [such] meeting will be held....

If the trustees refuse to call such meeting, or neglect to do so for a period of 20 days, the Commissioner may authorize and direct a district resident to give notice of such meeting (Education Law §1522[2]).

By petitioner’s own admission, the “sole purpose” for which he seeks to establish a union free school district “is to expand the representation of the board” from three to five persons.  Respondent maintains that this is not a permissible purpose under Education Law §1522.  

Respondent relies on Appeal of Sollecito (2 Ed Dept Rep 348, Decision No. 7,129), in which the Commissioner concluded, where the “sole reason” the petitioner sought to call a special meeting pursuant to Education Law §1522 was to “elect a new Board of Education” to “overturn an administrative determination of the present school board,” such reason was “not within the purview of the purposes for which this procedure was designed.”  The Commissioner noted that the “main purpose for which the Legislature designed [Education Law §1522] was to enable a district to establish and operate a high school.”

While Education Law §1522 authorizes the establishment of a union free school district from a common school district, such provision is part of a statutory scheme of school district reorganization intended to expand educational opportunities for students by creating a larger district able to operate a high school (seeAppeal of Sollecito, 2 Ed Dept Rep 348, Decision No. 7,129; Appeal of Capossela, 74 St Dept Rep 9, Case No. 5,787).  In Appeal of Sollecito, the Commissioner determined that §1522 is not intended to permit formation of a union free school district solely for the purpose of changing and/or expanding a district’s governance structure.

As noted above, petitioner admits that the “sole purpose” of the request is to “expand the representation of the board.”  In an attempt to distinguish Appeal of Sollecito, he also asserts that there is “absolutely no intent to overturn any decision or administrative determination made by this current board” and submits an affidavit containing a similar statement from another district resident.

Respondent contends that petitioner’s purpose in establishing a union free school district is to “establish a new governing body” and is based on “dissatisfaction” with the current board, particularly in light of the board’s actions with respect to a previous superintendent’s contract.  As noted above, other than the conclusory statements contained in the petition and accompanying affidavit, petitioner has produced no evidence to the contrary.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Based on the record before me, I cannot conclude that petitioner has carried his burden of establishing a permissible reason to call a special district meeting, pursuant to Education Law §1522, to vote on the establishment of a union free school district.  Respondent properly relied upon the decision of the Commissioner in Appeal of Sollecito, 2 Ed Dept Rep 348, Decision No. 7,129, in denying his request for a special district meeting.  As a result, I find that respondent’s determination was reasonable, rational and consistent with the law and I decline to exercise my discretion to direct a special district meeting pursuant to Education Law §1522.

THE APPEAL IS DISMISSED.

END OF FILE.