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Decision No. 13,749

Appeal of KEITH W. MCCART, JANET S. MCCART, and FRANK E. HEANEY from action of the Board of Education of the Hoosick Falls Central School District regarding a bond referendum.

Decision No. 13,749

(March 28, 1997)

Holbrook & Johnston, attorneys for respondent, George H. Holbrook, Esq., of counsel

MILLS, Commissioner.--Petitioners request the Commissioner to review the circumstances and conditions associated with the development, advancement and adoption by respondent board of a bond issue referendum that was rejected by the voters on November 21, 1996. The appeal must be dismissed.

Petitioners are concerned about five factors associated with the referendum: (i) the reliability and acceptability of findings and recommendations of respondent's Facilities Planning Committee; (ii) the investigation of alternatives to reduce the need for additional space; (iii) the determination of optimum usage of existing classrooms; (iv) the communication and informational aspects of the referendum; and (v) the speed of the process. Petitioners request that I investigate the circumstances surrounding the development of the rejected proposal. Petitioners also seek a ruling that the integrity of the voters was exploited and that the defeated proposal be reconstituted based on the considerations stated in the petition.

Respondent raises a number of defenses including untimeliness, mootness, and failure to state a claim.

First, the appeal must be dismissed because it is untimely. An appeal to the Commissioner of Education must be brought within 30 days of the making of the decision or act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). Petitioners do not allege that any actions forming the basis of this complaint occurred within 30 days of the filing of this appeal, and they offer no excuse for the delay. Accordingly, the appeal must be dismissed as untimely.

The appeal must also be dismissed because the matter is moot. The subject of this appeal is a bond referendum that was rejected by the voters on November 21, 1996. It is well settled that the Commissioner will decide only matters which are in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Berheide, 35 Ed Dept Rep 412; Appeal of Healy, 34 id. 611; Appeal of Lanoir, 34 id. 562; Appeal of Hartmann, 32 id. 640).

Even if the appeal were not dismissed on procedural grounds, it must be dismissed on the merits because petitioners fail to demonstrate that their allegations form a basis for relief. Section 275.10 of the Commissioner's regulations requires that a "petition contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief." Moreover, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Nash, 35 Ed Dept Rep 203; Appeal of Goldman, 35 id. 126) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Nash, supra; Appeal of DiMicelli, 28 Ed Dept Rep 327). Petitioners have not provided any evidence that they have a legal right to relief arising from respondent's alleged actions.

Finally, the relief which petitioners seek is declaratory in nature. The Commissioner does not issue declaratory rulings in appeals brought pursuant to Education Law '310 (Appeal of Wells, 35 Ed Dept Rep 367; Application of Marshall, et al., 33 id. 26; Appeal of Heizman, 31 id. 387).