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Decision No. 12,861

Appeal of WESLEY EVANS MARTIN from action of the Board of Education of the Central Islip Union Free School District, and Norman A. Wagner, as President of the Board of Education, relating to the failure of the board to allow petitioner to speak at board meetings.

Decision No. 12,861

(December 28, 1992)

Pelletreau & Pelletreau, Esqs., attorneys for respondent, Kevin A. Seaman, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to allow him to speak at two board meetings. The appeal must be dismissed.

Petitioner is a former member of the board of education of the Central Islip Union Free School District ("respondent"). At regularly scheduled board meetings on November 12, 1991, and December 9, 1991, petitioner was denied the opportunity to address the board at a time when residents are typically allowed to speak.

The agenda for public meetings provides that comments from the public will be accepted as follows:

Residents are invited to speak at this time on agenda and non-agenda items. A card is provided for residents' use and should be presented to the District Clerk prior to the meeting. All comments are limited to three minutes and session is not to exceed 8:00 p.m.

According to respondent, petitioner was not allowed to address the board because he was not a resident of the district. Respondent based its decision on: a newspaper article that identified petitioner as an East Islip resident, the fact that petitioner's wife, an employee of respondent, listed an East Islip residence in her personnel file, and the fact that another family whose children attend respondent's schools identified the same residence as petitioner claims to be his residence.

Petitioner nevertheless contends that he is a resident of respondent's school district, and as such should have been allowed to speak at the board meetings. Petitioner submits a motor vehicle registration, letters from respondent addressed to him at a Central Islip address, and his wife's paycheck listing the Central Islip address.

Alternatively, petitioner contends that respondent's policy is illegal because it limits dialogue to residents of the district. He also asserts that respondent's refusal to allow him to speak violates the Open Meetings Law and his constitutional right to free speech. Accordingly, petitioner seeks to have any official actions taken at the November 12 and December 9, 1991 board meetings declared null and void. He also seeks damages and costs in the amount of $250,000.

Respondent contends that since petitioner is not a resident, it was neither arbitrary, capricious nor illegal to deny him the opportunity to address the board. Respondent further asserts that its policy of allowing only residents to speak violates neither the Open Meetings Law nor petitioner's constitutional rights. Respondent also asserts that I lack jurisdiction to nullify its actions or award damages. Further, respondent asserts that, as a nonresident, petitioner lacks standing to challenge respondent's actions.

The question of residence is one of fact. Despite petitioner's assertions that he is a resident of respondent's district, the record before me provides a basis to conclude, as I did in a proceeding previously before me (Application of Martin, 32 Ed Dept Rep 208), that petitioner no longer resides in the Central Islip Union Free School District (Appeal of Roy, 31 Ed Dept Rep 497). Because he is a non-resident, I find petitioner lacks standing to bring this appeal (Application of Martin, supra; Application of Gmelch, 32 Ed Dept Rep 167).

The appeal is dismissed on the merits as well. Education Law '1708 requires the board of education to hold a regular meeting at least once in each quarter. A board has the right to control the agenda at board meetings. There is no statutory mandate that requires a board to permit public input at its meetings (Appeal of Wittneben, 31 Ed Dept Rep 375; Matter of Thomas, 10 id. 108). Board members are representatives chosen by the people to govern the affairs of a school district and as such have an obligation to keep the residents informed and to provide channels of communication through which residents may express their opinion (Matter of Thomas, supra). Thus, boards of education should be encouraged to have residents participate in their meetings (Appeal of Wittneben, supra). The reason for public participation is to enable board members to understand the concerns of the residents they represent. Since board members represent only the residents of the district, these are the individuals who should be heard. Furthermore, since there is no statutory obligation by boards of education to have any public comment, boards cannot be compelled to give non-residents a public forum.

Nor is there a legal or factual basis to declare null and void actions taken by the board at the meetings in question. Since respondent's actions were not contingent on public comment in the first instance, even if I had not dismissed the appeal, the relief requested would have been denied.

Furthermore, I lack jurisdiction to address Open Meetings Law claims. The proper forum for addressing such claims is State Supreme Court (Public Officers Law '107; Application of Eisner, 31 Ed Dept Rep 517; Appeal of Weaver, 28 Ed Dept Rep 183). To the extent petitioner raises constitutional claims, Education Law '310 is not the proper forum to decide novel constitutional questions (Appeal of Sewanhaka Central High School District, 31 Ed Dept Rep 360; Appeal of St. Syr, 27 Ed Dept Rep 351).

Finally, petitioner's claims for damages must be dismissed because the Commissioner of Education lacks authority to award damages, costs or attorney's fees (Appeal of Martin, 31 Ed Dept Rep 441; Application of a Child with a Handicapping Condition, 31 id. 212).