Decision No. 13,574

(March 15, 1996)

Cole, Latham & Joint, P.C., attorneys for respondent, Joseph W. Latham, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals actions of the Board of Education of the Canisteo Central School District ("respondent") regarding the approval of a capital project. The appeal must be dismissed.

Petitioner is a resident of respondent's district. He served on respondent's School Building Committee, also known as the Capital Project Committee. That group had been asked to make recommendations concerning a proposed capital project and submitted its report recommending approval of the project on September 6, 1995, which was signed by sixteen members of the committee. On September 22, 1995, petitioner contacted the superintendent's office and asked to be added to the agenda of respondent's next board meeting to present the minority proposal of the capital project committee. Petitioner was not placed on the agenda. On September 25, 1995, respondent board considered and adopted the building committee's proposal. Petitioner was present at that meeting and distributed copies of his minority proposal but asserts that he was denied an opportunity to speak. On December 12, 1995, a proposition was passed by a vote of 655 to 613, authorizing the $14.4 million building project. This appeal ensued. Petitioner's request for interim relief was denied on January 16, 1996.

Petitioner alleges that he was not given the opportunity to present his minority proposal at respondent's September meeting and that respondent violated its own rules regarding participation at its meetings. Petitioner asks that I rescind the vote for the capital project. Respondent raises a number of procedural objections, including standing, failure to make a clear and concise claim, untimeliness and improper service under 8 NYCRR 275.8(d). Respondent also contends that petitioner received a fair and adequate hearing of his views and that it did not violate its policies regarding public participation at board meetings.

Before reaching the merits of petitioner's appeal, I will address respondent's primary procedural issue. Respondent contends that the appeal is untimely because petitioner complains of actions taken at the September board meeting and his appeal was not commenced until January 2, 1996. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of McCall, 35 Ed Dept Rep 38). Respondent board's meeting was held on September 25, 1995, and this appeal was not commenced until January 1996, more than 30 days later. Petitioner offers no excuse for the delay, except to claim that respondent's actions culminated in the vote held on December 12, 1995. Therefore, petitioner's claims are untimely with regard to the September 1995 meeting, but timely to the extent that petitioner challenges the vote held on December 12, 1996.

The appeal must also be dismissed on the merits. Petitioner contends that his minority proposal was not considered by respondent at its September board meeting and appears to contend that respondent had an obligation to do so. He claims he was not provided an opportunity to speak on the issue at respondent board's September meeting. Respondent's policy states:

The record indicates that petitioner requested that he be placed on the agenda on Friday, September 22, 1995 for the Monday, September 25, 1995 meeting. Petitioner was not placed on the agenda because his request did not comply with respondent's policy requiring one week's notice. However, he was present at the board meeting and distributed copies of his proposal. Petitioner contends that he was waiting to be called on by the school board president and, since he was not called upon, he did not participate in the discussion at the meeting. However, petitioner's decision to refrain from participation cannot be attributed to respondent. Although petitioner was not formally placed on the agenda, he could have spoken at the meeting. My review of the record indicates that respondent did not deny petitioner the opportunity to speak at and thus did not violate its own policies regarding public participation.

The results of a school district vote will not be set aside in the absence of evidence of the probability that the alleged irregularities affected the outcome of the election (Matter of Boyes v. Allen, 32 AD2d 990, aff'd 26 NY2d 709; Appeal of Donnelly, 33 Ed Dept Rep 362; Appeal of Brower, 29 id. 145). Petitioner appears to suggest that the conduct of the September 25, 1995 meeting was so improper as to vitiate the results of the vote. Petitioner has clearly not met his burden of proof. Therefore, there is no basis for me to overturn the capital project proposition.

I have reviewed the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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