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Decision No. 13,306

Appeal of LORI BRUSH from action of the Board of Education of the Middle Country Central School District regarding voter propositions.

Decision No. 13,306

(December 14, 1994)

Lustig and Hermer, Esqs., attorneys for petitioner, Samuel J. DiMeglio, Jr., Esq., of counsel

Rains & Pogrebin, P.C., attorneys for respondent, David J. Wirtz and Sharon N. Berlin, Esqs., of counsel

SOBOL, Commissioner.--Petitioner seeks an order directing the Board of Education of the Middle County Central School District ("respondent") to submit two proposals to the voters of the district. The appeal must be dismissed.

On June 1, 1994, respondent presented to the voters a proposed budget for the 1994-95 school year, a proposition authorizing the reconstruction of various school buildings to be funded by a bond issue and a proposal to provide additional transportation to students. Voters rejected the proposed budget and propositions.

On July 25, 1994, respondent adopted a new budget and several propositions to be presented to the voters on September 12, 1994. On or about August 9, 1994, petitioner presented two propositions to respondent, asking that those propositions also be presented to the voters on September 12. On August 25, 1994, respondent rejected petitioner's request. Petitioner commenced this appeal on August 31, 1994 and requested interim relief staying the conduct of the vote scheduled for September 12. That request was denied.

The two propositions presented by petitioner involve a capital projects bond issue rejected by the voters on June 1, 1994 and a proposal to restore funding for programs and positions that respondent cut from the budget. Petitioner contends that the rejection of her propositions was arbitrary and capricious because respondent developed its budget without sufficient input from the public.

Before reviewing the merits of this appeal, I must address a procedural issue. Respondent notes in its memorandum of law that petitioner raises new issues and offers new allegations and exhibits in her reply and in an accompanying affidavit. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR 275.3). A reply is not meant to buttress allegations contained in the petition or to add assertions or exhibits that should have been in the petition (Appeal of Lemley, 33 Ed Dept Rep 706; Appeal of Taber, et al., 32 id. 346; Appeal of Mermelstein, et al., 30 id. 119). Accordingly, I have not considered the new issues, allegations and exhibits included in petitioner's reply submissions.

Turning to the merits, Education Law '2008(2) provides that a board of education, upon presentation of a proper petition requesting the board to call a special vote for the purpose specified in the petition, shall proceed to call the meeting unless it appears

(a) that the purpose for which such meeting is sought to be called is not within the power of the voters of the district, or

. . .

(d) that other valid reason exists for refusing to call such meeting which reason when appealed to the commissioner of education shall be deemed by him to be sufficient cause for such refusal.

I note that petitioner's first proposition regarding a capital projects bond issue is identical to that presented by respondent and rejected by voters on June 1, 1994. It has repeatedly been held that once an issue has been placed before the voters and settled for a particular year, it is not improper for a board to refuse to place such issue before the voters in the same year (Appeal of Tumilowicz, 32 Ed Dept Rep 414; Appeal of Quarfot, 31 id. 141; Appeal of Austin, 27 id. 17; Matter of Inglis, 16 id. 71). Because the voters have expressed their wishes on this matter, respondent could properly decline to place this issue before the voters a second time.

Petitioner's second proposition seeks to restore funding for positions and programs cut by respondent in the budget to be presented to the voters. However, pursuant to Education Law '1716, authority to develop a budget for a school district rests with a board of education. Specifically, the authority to create and abolish teaching positions rests with the board of education (Education Law '1709[16]), not with the voters of the district (Matter of Young v. Bd. of Ed., et al., 41 AD2d 966, aff'd 35 NY2d 31; Matter of Mistretta, 15 Ed Dept Rep 279). Moreover, a board of education has broad discretion to determine what instructional programs will be offered in the schools of its district (Education Law '1709[3]; Appeal of Boss, 28 Ed Dept Rep 69; Matter of Mennella, 21 id. 721; Matter of Hannahs, 21 id. 706). The scope of that discretion includes the authority to terminate existing programs for budgetary reasons (Appeal of Boss, supra; Matter of Mennella, supra). In view of respondent's discretion in this matter and that such decisions are not within the power of the voters, respondent properly refused to place petitioner's second proposition before the voters.

Petitioner and respondent disagree as to whether respondent accepted public input when it formulated the revised budget that was presented to the voters on September 12, 1994. In any event, a board of education is not required to receive public input in developing a budget, or to have its budget approved by a shared decisionmaking committee. However, I strongly urge respondent to permit and accept responsible public input when formulating a budget.

Petitioner also raised an issue regarding the adequacy of physical education instruction in respondent's elementary schools. However, the record before me is inadequate to address that issue. In any event, such allegations do not establish a legal basis for ordering respondent to submit petitioner's propositions to the voters.