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Decision No. 12,680

Appeal of RONALD ROSENBERG and SAMARA ROSENBERG from action of the Board of Education of the Half Hollow Hills Central School District of Huntington and Babylon relating to voter propositions.

Decision No. 12,680

(April 13, 1992)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Neil Block, Esq., of counsel

SOBOL, Commissioner.—Petitioners, residents and taxpayers of respondent's school district, appeal from its decision not to place two propositions on the ballot for the annual meeting held on June 19, 1991. Additionally, petitioners assert that respondent did not comply with Commissioner's regulations 8 NYCRR "155.1 by failing to have on record long-range facilities plans. Petitioners requested a stay on May 14, 1991; the request was denied on May 23, 1991. The appeal must be sustained in part.

On April 29, 1991, respondent's district clerk received two petitions. The first petition contained a proposition to expand respondent's school board from seven to nine members. The second petition contained a proposition authorizing the closure and sale of respondent's administration building. The propositions were rejected by respondent board at its May 6, 1991 meeting.

Petitioners assert that the propositions were timely submitted and that the school board need not review propositions. They further assert that once the school board's attorney certifies that a proposition is legally accurate in must be placed on the ballot.

Respondent contends that the proposition to increase the number of board members was properly rejected because it was not submitted within a reasonable time in advance of required publication deadlines. Additionally, respondent asserts that the proposition concerning the sale of the administration building was rejected at its May 6, 1991 meeting on the basis that voter authorization is not needed to close or sell school district property. Respondent alleges the school district is in substantial compliance with Commissioner's regulations "155.1(a).

Petitioners seek to bring this as a class appeal. An appeal to the Commissioner may be maintained on behalf of a class where the class is so numerous that joinder of all members is impractical and where questions of law and fact are common to all members of the class (8 NYCRR 275.2[a]). A class appeal will not be permitted when a petitioner fails to indicate the number of individuals he seeks to represent or the common questions of law and fact (Appeal of Vienie, 31 Ed Dept Rep 624; Appeal of Maynard, 28 id. 198). Petitioners do not define the class they claim to represent and do not state the number of individuals in the class. Accordingly, this appeal may not be maintained as a class appeal.

Petitioners request that I order respondent to place these propositions on the 1991 ballot. The Commissioner of Education will determine only matters which are in actual controversy and will not render a determination upon a matter which subsequent events have laid to rest (Appeals of Mitzner, 31 Ed Dept Rep 139; Appeal of Sileo, 28 id. 313; Matter of Morris, 17 id. 95). Because the 1991 election is past, the relief sought cannot be granted and petitioners' claims relating to the improper rejection of their propositions are moot.

Even if respondent board's rejection of the propositions were not moot, the petition concerning the propositions would be dismissed on the merits. Upon my review of the record, I find that the proposition for increasing the size of respondent's board of education was not submitted timely. Education Law "1703(2) requires that such a proposition be included in the Notice of Annual District Election. Education Law "2003(1) requires that the Notice of Annual District Election be published 45 days prior to the election, in two newspapers with general circulation in the district. A proposition to change the number of members of a board of education must be submitted a reasonable time before the 45 day notice period (Appeal of Como, 30 Ed Dept Rep 214; appeal dismissed App. Div. 3rd Dept, September 3, 1991; Matter of Orzechowski, 28 id. 25; Appeal of Presutti, 17 Ed Dept Rep 445).

Petitioners' proposition was submitted to respondent on April 29, 1991, while the required date for submission to one of the local publications, The Long Islander, used by respondent was one day earlier, on April 28, 1991. Concerning the submission of the proposition to the other publication, Newsday, unless the board scheduled an emergency meeting or otherwise declined to review the petition at its next regularly scheduled meeting of May 6, 1991, it would have failed to meet its 45 day publication deadline. Since the board of education has the responsibility and authority to review any petition before submitting it to the voters, and should not be required to schedule an emergency meeting to meet its publication deadline, I find petitioners' submissions untimely. Therefore, to avoid any confusion in the future, I note that a board of education has the authority, pursuant to Education Law "2035, to adopt a bylaw indicating when propositions must be presented to the board for review.

Petitioners' claim that respondent board is obligated to place a proposition before the voters concerning the sale of a school building is also without merit. Education Law "2035(2) provides that "… any proposition may be rejected by the trustees or board of education if the purpose of the proposition is not within the power of the voters…." Decisions concerning the use of school facilities are within the discretion of the board of education. Therefore, the result of any referendum would be advisory (Appeal of Southeast Taxpayers Civic Association, 17 Ed Dept Rep 122). A board of education may solicit community views concerning school facilities using public hearings, meetings, conferences and written communication of views. However, the solicitation of public opinion through a non-binding referenda may infer voter determination of the issue and, therefore, should be discouraged (Appeal of Moonan and Richards, 28 Ed Dept Rep 390; Appel of Feldheim, 8 id. 136). Since this proposition concerns the sale of a school facility, respondent is under no affirmative obligation to place this proposition before the voters.

Moreover, petitioners' claim regarding the closing of a school building is an issue dismissed in a previous appeal before the Commissioner (Appeal of Seligman, 31 Ed Dept Rep 131, aff'd App. Div., 3rd Dept., February 27, 1992). Having litigated the same claim and having received an adverse determination regarding the closure of a school building, petitioners are barred by the doctrine of resjudicata from relitigating the question in this proceeding (Appeal of Tobin, 30 Ed Dept Rep 315; Appeal of Faville, 28 id. 396; Appeal of Roth, 26 id. 165; Matter of Monaco, 24 id. 348).

Petitioners' allegation that respondent failed to comply with Commissioner's regulations at 8 NYCRR "155.1(a) must be sustained. That regulation provides:

Each school district shall develop and keep on file a comprehensive long-range plan pertaining to educational facilities. Such plan shall be reevaluated and made current at least annually…

Respondent denies that it failed to develop and maintain a long-range plan and supplies a list of district documents and offices where they can be found to satisfy the regulation requirements. Since respondent has not submitted any comprehensive document setting forth its long-range facilities plan, as the regulation requires, petitioners have met their burden of proof.

Petitioners also contend that they denied access to critical documents in violation of FOIL, resulting in their inability to perfect their propositions earlier (Public Officers Law "84, etseq.). The appropriate forum for addressing violations of FOIL is the Supreme Court of the State of New York (Application of Cobb, et al., 29 Ed Dept Rep 179; Matter of Zook, 28 id. 77; Matter of Keiling, 25 id. 122).

THE APPEAL IS SUSTAINED to the extent indicated.

IT IS ORDERED that respondent develop, within sixty days, a comprehensive long-range plan in accordance with 8 NYCRR "155.1(a).