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Decision No. 13,499

Appeal of KENNETH B. WIESEN from action of the Board of Education of the Jericho Union Free School District relating to the lease of temporary classroom units.

Decision No. 13,499

(October 23, 1995)

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

MILLS, Commissioner.--Petitioner appeals the efforts of the Board of Education of the Jericho Union Free School District ("respondent") to lease temporary classroom units. The appeal must be dismissed.

On February 16, 1995, respondent, based upon an earlier resolution and studies of the need for additional classroom space in the district, adopted a resolution authorizing its superintendent to add four temporary classrooms to the Jackson Elementary School by September 1, 1995. To facilitate this effort, respondent included funding to lease the temporary classrooms in its proposed 1995-1996 budget, which was scheduled to be submitted to the voters at the district's annual meeting on May 5, 1995. Petitioner asserts that at several public meetings prior to this vote, respondent stated that it was authorized by Education Law '1725 to lease the temporary classrooms needed by the district without the approval of district voters. Petitioner disputed respondent's interpretation of the law, arguing that Education Law '1726 requires the lease of the disputed temporary classrooms to be approved by district voters.

Petitioner commenced this appeal on March 17, 1995. The petition sought a stay preventing respondent from going forward with the leasing process pending the outcome of the appeal, an annulment of the February 16, 1995, board resolution, an order preventing any further actions by respondent without first obtaining approval of the voters of the district, and a further order that if respondent chose to seek such voter authorization, it would do so at a properly called and noticed district meeting by way of a separate "resolution."

Respondent argued that Education Law '1725 applied, and that it could authorize the leasing of temporary classrooms without the approval of district voters by passing a resolution that the need for such space constituted a contingent item pursuant to Education Law '2023. In the alternative, respondent argued that if Education Law '1726 were held to apply, the Commissioner should grant approval pursuant to '1726(5), which would allow it to "lease necessary space in case of an unforeseeable emergency" without voter approval.

On March 30, 1995, Commissioner Sobol issued a stay which restrained respondent from going forth with its leasing plans. The order further provided that if and when respondent complied with the Education Law, including Education Law '1726, and the General Municipal Law to the extent required by Education Law '1726(3), respondent could apply upon proper notice to petitioner for a modification or dissolution of the stay. In the course of issuing such order, Commissioner Sobol necessarily determined that Education Law '1726 applied to the leasing of temporary classrooms proposed by respondent.

On or about April 5, 1995, respondent applied to vacate the previous order. Respondent provided a copy of a resolution passed March 30, 1995, in which it declared the cost of securing and installing four temporary classroom units an ordinary contingent expense in accordance with Education Law '2023. Respondent also advanced a proposal to comply with Education Law '1726(5) by mailing certain budget information to every household in the district with highlighted material pointing out the inclusion of funds for the temporary classroom units within the proposed 1995-1996 budget. These mailings were to be completed prior to the annual meeting, and a favorable vote on the budget would also constitute voter approval pursuant to '1726(5). Petitioner opposed this proposal as inadequate. On April 26, 1995, Commissioner Sobol issued a further order in which he refused to dissolve the stay, but stated:

In my judgment, the sending of the highlighted budget item attached to Mr. Reich's letter to every household in the district prior to the May 3, 1995, annual budget vote, and the inclusion of the transfer of funds with respect to the four temporary classrooms under Budget Code 9950.90, would provide adequate notice to the voters to obtain their approval pursuant to Education Law '1726(5). If the budget is approved on May 3, respondent may again make application, upon proper notice to petitioner, for a modification or dissolution of the stay granted by me on March 30, 1995.

On May 3, the proposed budget was approved by a vote of 1085-557. The following day respondent applied to vacate the March 30, 1995 stay and to dismiss the underlying appeal as moot. On May 12, 1995, Commissioner Sobol granted the application to dissolve the stay and said: "Respondent has now complied adequately with the provisions of Education Law '1726(5) by submitting the question of leasing four temporary classrooms to the voters for their approval, and may now proceed in full compliance with Education Law '1726 and the General Municipal Law in order to effectuate such a lease." Thereafter, my Office of Counsel asked petitioner to withdraw the underlying appeal, but he refused to do so.

The appeal must now be dismissed as moot. During the course of this appeal, petitioner has obtained the primary relief he sought, at the appropriate time, and has forced respondent to obtain voter approval before entering into a lease. In determining the stay application, Commissioner Sobol necessarily decided, as petitioner argued, that Education Law '1726 applies to transactions involving the leasing of temporary classroom units. With respect to the original relief sought, by implication Commissioner Sobol refused to annul respondent's resolution of February 16, 1995, because there was no reason to do so. The subject matter of that resolution has now been approved by the voters, and nothing remains before me for decision.