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Decision No. 14,563

Appeal of LEONARD SATLER from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding a bond proposition.

Decision No. 14,563

(April 20, 2001)

Ehrlich, Frazer & Feldman, attorneys for respondent, Jerome H. Ehrlich, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges a bond referendum conducted by the Board of Education of the Hewlett-Woodmere Union Free School District ("respondent") on June 20, 2000. The appeal must be dismissed.

On March 14, 2000, respondent conducted a referendum on three propositions for the financing of school construction projects. District voters rejected all three propositions and respondent submitted one scaled-down proposition to the voters on June 20, 2000. That proposition passed by a vote of 984 to 856.

Petitioner challenges actions by respondent preceding the June 20, 2000 bond vote. Petitioner alleges that voter turnout was reduced because of inadequate notice of the referendum. Petitioner contends that senior citizens and people with disabilities were discriminated against because of the late notice. Petitioner also alleges that respondent presented voters with inaccurate information concerning student enrollment and the total cost of the bonds, including interest. Petitioner further claims that respondent misstated the percentage of the project costs that would be eligible for State aid. In addition, petitioner alleges that there is the appearance of ethical impropriety because an employee of the architectural firm retained by respondent for the project is the son of respondent’s president. Petitioner further alleges that a portion of the current bond issue is to cover work that should have been completed in a prior construction project performed by the same architectural firm. Petitioner’s request for interim relief was denied on September 22, 2000.

Respondent argues that the appeal is untimely and that petitioner has failed to establish any of his claims. Respondent asserts that it gave timely and accurate information to the public regarding the costs of the bond and the details of the bond vote, in accordance with applicable law. Respondent disputes petitioner’s statements regarding enrollment trends. Respondent asserts that its president fully disclosed that his son worked for one of the architectural firms before the board voted to retain that firm and that there is no conflict of interest. Respondent also objects to new assertions and exhibits raised in petitioner’s reply.

Initially, I note that petitioner attempts to bring this appeal on behalf of district residents. An appeal may only be maintained on behalf of a class "where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class" (8 NYCRR "275.2; Appeal of a Student with a Disability, 39 Ed Dept Rep 1, Decision No. 14,154; Appeal of Aloisio, 38 id. 169, Decision No. 14,009). Petitioners must set forth the number of individuals they seek to represent (Appeal of a Student with a Disability, supra; Appeal of Sperl, 33 Ed Dept Rep 388, Decision No. 13,088) and must show that all questions of law and fact would be common to all members of the class (Appeal of a Student with a Disability, supra; Appeal of Donnelly, 33 Ed Dept Rep 362, Decision No. 13,079). In this appeal, the number of prospective members of the class has not been set forth nor has petitioner shown that anyone else is "similarly situated." Therefore, petitioner's request for class status is denied. However, the appeal may proceed in petitioner's individual name.

The appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause (8 NYCRR "275.16). In this case, it appears that petitioner challenges events preceding the June 20th vote. The appeal was commenced on September 14, 2000, more than 30 days after the vote. Petitioner makes general claims that he required extra time to conduct his investigation, without establishing what unusual circumstances prevented him from filing his petition until nearly three months from the date of the vote. Therefore, I find no basis to excuse his lateness and the appeal is dismissed as untimely.

The appeal must also be dismissed as moot. The Commissioner will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Floramo, 39 Ed Dept Rep 389, Decision No. 14,269; Appeal of June D., 38 id. 596, Decision No. 14,101). In this case, the only relief requested in the petition was a general request for a stay. As his only request for relief has already been decided, the appeal is moot.

In light of the foregoing disposition, I need not address the parties remaining contentions.