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Decision No. 12,611

Appeal of TANIA M. BENKOVITZ from action of the Board of Education of the Bainbridge-Guilford Central School District relating to a voter proposition.

Decision No. 12,611

(December 12, 1991)

Hogan & Sarzynski, Esqs., attorneys for respondent, John B. Hogan, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from a determination of respondent board of education to accept a voter petition to increase the term of office of board members pursuant to Education Law '2105(3) and to place a proposition to that effect before the voters on June 5, 1991. The appeal must be dismissed.

Prior to 1990, board members in respondent district served terms of five years. In 1990 a group of voters, including the petitioner, presented a petition to the board of education to decrease the terms of board members from five years to three years. The proposition appeared on the ballot on May 16, 1990 and was passed.

In March 1991, a group of voters who disagreed with the vote prepared a new petition to increase the term of board members from three years back to five years. This petition appears to have been presented to the board of education on March 21, 1991. The proposition to increase the term of board members was approved as part of the notice of annual meeting to appear on the June 5, 1991 ballot as follows: "Shall the term of the office of members of the Board of Education in future years be increased from a full term of three years to five years?"

On April 5, 1991, petitioner commenced this appeal. Petitioner requested that I issue a stay keeping Proposition 2 off the ballot, and that I order the board to adopt a rule that any proposition which would reverse a previous proposition approved by the voters could not be placed on the ballot for some minimum period subsequent to voter approval of the initial proposition. On April 11, 1991, the board again met, giving final approval to the notice of annual meeting and to the petition to increase the term of office of board members. On April 16, I denied the stay request. Neither party to this appeal has advised me of the outcome of the election on June 5.

Petitioner contends that the petition to increase the term of board members was inspired by board members who opposed the previous year's proposition and that it was done in malicious disregard for the wishes of the voters as expressed in 1990. Petitioner asks that I require the board to adopt rules which would impose a moratorium on propositions which are intended to negate the expressed will of the voters at a previous election. Petitioner also questions the propriety of the petition itself, specifically whether the number of signatures was sufficient.

Respondent contends that it already has in place rules regarding the submission of propositions pursuant to Education Law '2035(2), and that the petition in question met those requirements. Respondent further contends that Education Law '2105(3) allows the voters to increase or decrease the term of board members at "any annual meeting or election" and that it is obligated to put a properly constituted proposition on the ballot, as it did in both 1990 and 1991. Finally, it contends that there is no authority for imposing a moratorium which would prohibit the submission of a petition under Education Law '2105, when that statute specifically allows for a change in the term of office to be voted on at any annual meeting or election.

I must agree with respondent that there is no legal authority for a board of education to impose a local rule that would prevent the voters from adopting a proposition to change the term of school board members as is specifically authorized by Education Law '2105(3). Indeed, in her reply petitioner concedes that the board does not have any such authority under that statute. Petitioner contends, however, that the board does have authority pursuant to Education Law '2035(2) to make such a rule. I disagree. While that section authorizes districts to regulate "the manner of submitting propositions by anyone other than the board of education," there is no suggestion that a local rule may contradict the Education Law itself, and thereby forbid what the Education Law expressly allows. For that reason, the petition fails to state a claim upon which relief can be granted, and must be dismissed.

Petitioner also attempts to challenge in her reply the number of signatures on the petition. However, a reply may not be used to set forth new claims that were not made in the petition itself (8 NYCRR '275.14; Appeal of Barbara P., et al., 30 Ed Dept Rep 198; Appeal of Alexandreena D., 30 id. 203). Nevertheless, I will treat petitioner's claims as if they were properly in issue before me.

The petition submitted to the board in 1990 contained 60 signatures. At the 1990 election, 1,035 persons voted. The petition presented to the board in 1991 also contained 60 signatures, but it appears that not all of those signatures were obtained prior to March 21, 1991, when petitioner contends the petition was approved. On the 1991 petition, only 40 signatures were dated before March 20, 1991, the remaining 20 signatures were obtained on or after March 23, 1991.

If, as petitioner contends, the petition was accepted by the board on March 21, it then had only 40 signatures. If, as the board contends, the petition "was finally acted upon at the Board meeting on April 11, 1991" it then contained 60 signatures. Petitioner produces a copy of a legal notice of annual meeting which contains Proposition 2 dated March 21, while respondent produces a copy of the same legal notice of annual meeting dated April 11. Whether the petition was accepted at the March 21 meeting or at the April 11 meeting is of no consequence, however. It contained at both times more than the 25 signatures required under the rule previously adopted by the board of education pursuant to Education Law '2035(2). Moreover, petitioner's contention that the petition did not contain sufficient signatures on March 14, 1991, when the clerk of the board originally drafted the legal notice of annual meeting, is meritless. The legal notice has no significance until it is actually adopted by the board, so the March 14 date is of no import.

Petitioner further contends, however, that the rule of the board requiring 25 signatures to place a proposition on the ballot is contrary to Education Law '2008(2), which requires the greater of 25 qualified voters or five percent of the number of voters who voted in the previous annual election (in this case five percent of 1,035, or 52) to call a special district meeting. However, that section does not apply to the circumstances in this case. Education Law '2035(2) applies here and provides only that "a reasonable minimum number of signatures shall be required for submission." In any event, the board's rule requiring 25 signatures actually requires fewer signatures than would be mandated under Education Law '2008, if it were applicable. I therefore find petitioner's claim that the petition did not comply with '2008 to be meritless.

I have considered petitioner's remaining contentions and I find them to be without merit.