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Decision No. 12,911

Appeal of HENRY V. TANNER, et al. from action of the Board of Education of the City School District of the City of New Rochelle regarding rejection of a petition.

Decision No. 12,911

(April 12, 1993)

Michael Edward Plank, Esq., attorney for petitioners

McGuire, Kehl & Nealon, Esqs., attorneys for respondent, Jeffrey A. Kehl, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal from respondent's rejection of a petition which sought a public vote on two bond resolutions adopted by respondent. The appeal is dismissed.

Faced with increased enrollment and deteriorating facilities, respondent board began, in or about October 1991, a process to address the problems. After considerable debate and discussion of the issue, respondent adopted three resolutions on December 1, 1992 which authorized the issuance of fifteen-year serial bonds in an aggregate amount of $30 million for the reconstruction of three schools. On December 10, 1992 respondent published three notices of adoption, pursuant to Education Law '2612, in a local newspaper. Education Law '2612 provides:

2. (a) Notice of the adoption of such resolution in full shall be published once in a newspaper having substantial circulation in the school district.

(b) Such notice shall contain a statement that such resolution shall take effect forty-five days after the date of publication of its adoption unless within such forty-five days there be filed with the clerk of the board of education a petition protesting against such resolution, signed and authenticated by at least ten per centum of the qualified electors of such school district registered to vote therein at the last preceding general election.

(c) In the event that such a petition be filed in compliance with this section, such resolution shall not take effect until approved by the affirmative vote of a majority of the qualified electors at an election to be held in such school district not less than thirty days after the filing of such petition.

3. Such petition may be made on separate sheets and the signatures to each sheet shall be signed and authenticated in the manner provided by the election law for the signing and authenticating of designating petitions as far as applicable. The several sheets so signed and authenticated when fastened together and offered for filing shall be deemed to constitute one petition.

4. The clerk shall examine each such petition so filed and within ten days after such filing, shall transmit such petition to the board of education certifying that he has examined the petition and whether there has been compliance with the law. Thereupon the board shall affirm or reject his findings and proceed accordingly. If any question shall arise with reference to such determination, such question shall be referred to the commissioner by a statement in writing by any party within thirty days after such determination in accordance with section three hundred ten of this chapter. (emphasis supplied)

Shortly after the notices were published, petitioner Tanner asked respondent's clerk for a form of petition to challenge the bond issues. The clerk responded that she had no experience with such challenges. On January 22 and 25, 1993, petitioners filed with the clerk five volumes of a petition seeking a referendum on two of the proposed bond resolutions.

The petition was reviewed by the district clerk, who issued a report to respondent dated February 1, 1993. The report concluded that the petition was invalid because it had not been properly authenticated as required by the Election Law. The report also noted that many of the signatures were invalid because they were of individuals not registered to vote, duplications of the same signature or involved one individual signing for more than one person. On February 2, 1993 respondent accepted the clerk's report and rejected the petition. A subsequent review by the district clerk confirmed that the petition did not contain the signatures of the requisite 10% of the qualified voters of the district registered to vote at the last preceding general election. This appeal ensued.

Petitioners concede that the petition to the board was not properly authenticated since voter signatures on the petition were not personally witnessed, as required by Election Law '6-132(2) or (3). However, petitioners maintain that their failure in this regard is due to respondent's failure to provide them with an appropriate form of petition to challenge school bond resolutions, as is allegedly required by Election Law '6-132(5). Respondent contends that it is under no obligation to provide such a petition form and also maintains that petitioners failed to supply the required signatures of 10% of the voters of the district.

In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Singh, 30 Ed Dept Rep 284; Appeal of DiMicelli, 28 id. 327; Appeal of Amoia, 28 id. 150). In support of their contention that respondent is obligated to provide an appropriate form of petition, petitioners cite Education Law '2612(3). That section provides that the signatures on such a petition must be signed and authenticated in the manner provided by the Election Law. Petitioners contend that the reference to the Election Law in Education Law '2612(3) requires a board of education to comply with all the provisions of Election Law '6-132, which provides, among other things, the manner of authenticating signatures on a petition. A new subdivision 5 of that section now requires the State Board of Elections to prepare a sample form of a petition to designate a candidate for officer which meets all the requirements of Election Law '6-132 and distribute such forms to local boards of election. The public can obtain copies of the form from local boards of election. Petitioners further maintain that for a school district election, a board of education stands in the same place as a local board of elections and must provide the requested form of petition.

Petitioners' contentions are unpersuasive. Education Law '2612 provides that the provision of the Election Law relating to the signing and authenticating of signatures applies to the signing and authenticating of signatures on petitions seeking a public vote on a bond resolution. There is no mandate that any other provision of the Election Law is applicable. There is also no indication in the language of Election Law '6-132(5) that it is applicable to boards of education. The fact that the State Board of Elections has developed the form required by Election Law '6-132(5) and has not distributed it to any school district also indicates that this new mandate is not applicable to boards of education.

Finally, petitioners' request for relief in this matter ignores the fact that the petition submitted did not contain the required number of signatures. I have reviewed petitioners' other contentions and find them without merit.