Decision No. 13,628

(June 14, 1996)

Hancock & Estabrook, LLP, attorneys for respondent, Renee L. James, Esq., of counsel

New York State School Boards Association, amicus curiae, Jay Worona, Esq., of counsel

James S. Ambrose and Janet Rothacker, amicus curiae

MILLS, Commissioner.--Petitioners challenge the activities of the Board of Education of the Guilderland Central School District ("respondent") regarding a bond referendum. The appeal must be dismissed.

On December 15, 1992, the district's Student Population/Facility Needs Study Committee submitted recommendations to respondent with respect to the district's school facility needs in light of projected student population increases. Phase I included construction of a new elementary school and a structural integrity study of the high school. Phase II included the establishment of a committee to assess the middle school, high school and instructional program organization. In September 1993, the Student Population/Facility Needs Study Committee-Phase II ("Phase II committee") was formed to examine the ability of the district's high school facility to meet the district's future needs. The original committee consisted of 36 community residents, 32 staff members and 4 students. The Committee explored a number of options to address the student population issue as well as the quality and capacity of district facilities. In June 1995, the Committee recommended a proposal which called for a special referendum to allow district voters to vote on a $23.7 million major renovation project including construction of a new library and gym, 14 new classrooms, five new science rooms, expansion of the cafeteria and repair of the high school.

On September 12, 1995, respondent's superintendent presented a recommendation to respondent, based upon the Phase II committee's input, outlining a proposed construction project at the high school. On October 31, 1995, respondent voted to submit a bond issue to the voters on December 19, 1995. Public information meetings were held at district schools on October 17, November 20, November 27 and December 13, 1995. In addition, the public access station in the area aired a 45 minute program on the proposed bond referendum. The district's newsletters in September-October, 1995 and November, 1995 provided information concerning the bond issue. On December 1, 1995, an eight page bond brochure was mailed to district residents. On December 11, 1995, an open house and tour of the high school was held. On December 12, 1995, a public hearing was held on the proposed referendum. On December 19, 1995, the proposed bond issue was approved by district voters by a vote of 1921 to 1861. This appeal ensued. Petitioners' request for interim relief pending a determination on the merits was denied on February 5, 1996.

Petitioners seek to set aside the referendum and raise a number of allegations including concerns with student population projections, lack of sufficient consideration of space alternatives, use of the fund balance for debt service, absence of fiscal and tax impact information, failure of the State Environmental Quality Review Impact Statement to consider pending litigation between Pyramid Crossgates Company v. Assessor of the Town of Guilderland, Town of Guilderland, inconvenient timing of the December 19, 1995 voting date and procedural irregularities in communications on the referendum.

Respondent contends that its actions with regard to the referendum were proper. Respondent also raises two procedural defenses, failure to state a claim and untimeliness. Respondent further contends that petitioners have failed to demonstrate that any individual would have voted differently but for the alleged misrepresentations, that petitioners have failed to set forth alleged misconduct on the part of the district and that all information given out concerning the referendum was appropriate.

Before reaching the merits, I will address a procedural defense raised by respondent. Respondent contends that the appeal is untimely because the bond vote took place on December 19, 1995 and the appeal was not commenced until January 24, 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). Since the record indicates that the appeal was commenced after the 30 day time limit and petitioners offer no excuse for the delay, the appeal must be dismissed as untimely.

Turning to the merits, petitioners allege that the bond vote should be overturned based on the allegations presented. Petitioners raise a number of issues that they believe warrant overturning the election. However, the record in this case indicates that respondent and the Phase II committee considered all options relating to the high school and determined that the bond referendum presented to the voters was necessary and in the best interests of the district. While petitioners may disagree on student population projections, respondent documented that it examined student population projections and hired the Capital District Regional Planning Commission to issue a report concerning the projected student population which supported the district's conclusions. The record also indicates that respondent was fully aware of the pending litigation concerning the Town of Guilderland and was briefed on the possible impact of the litigation prior to its determination to submit the bond referendum to district voters. The record also fails to support petitioners' remaining allegations that respondent improperly used the fund balance for debt service, did not adequately consider space alternatives, did not adequately explain the fiscal and tax impact of the project and used its communications to improperly promote the bond vote. While petitioners disagree with respondent's conclusions, they concede that the vote was "technically legal" and only allege that respondent should have acted differently. Petitioners' disagreement with respondent's course of action, in the absence of any illegality, is insufficient for me to substitute my judgment for respondent's.

Petitioners also contend that respondent's selection of December 19, 1995 for the referendum was improper because the timing of the vote was too close to holidays and denied senior citizens the opportunity to vote if they leave the area during the winter months. The record indicates that respondent chose this date to give the district time to draw up plans, secure the necessary approvals and let out bids before breaking ground in the summer. The goal was to complete some portions of the project by September 1997 and complete major portions of the project by September 1998. There is no evidence that respondent timed the vote to inconvenience district voters. Furthermore, it is within a school district's discretion to set a special meeting date (Education Law '2006, 2007; Matter of Gilbert, 20 Ed Dept Rep 174). Finally, petitioners seek to nullify the bond vote on the basis of the alleged irregularities. 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 Crawmer, 35 Ed Dept Rep 206; Appeal of Donnelly, 33 id. 362). In a vote on a capital project and financing thereof, the proof must contain affidavits or statements from individuals who voted in favor of the proposition that their vote would have been otherwise but for the alleged misconduct (Appeal of Bach, 32 Ed Dept Rep 273; Appeal of Hable, 30 id. 73). Petitioners submit no proof that anyone who voted for the financing would have voted differently but for the alleged misleading information. Based on the record before me, I find no basis to overturn the district vote on the bond issue.

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

THE APPEAL IS DISMISSED.

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