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Decision No. 14,667

Appeal of EBONI MARSHALL and DARLENE TROGE from action of the Board of Education of the Riverhead Central School District regarding a voter referendum.

Decision No. 14,667

(December 17, 2001)

Payne, Wood & Littlejohn, attorneys for petitioners,

Mark A. Cuthbertson, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent,

Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Riverhead Central School District ("respondent") to place an advisory proposition concerning charter school funding before the school district"s voters. The appeal must be dismissed.

On January 10, 2001, the Board of Regents issued a charter authorizing the board of trustees of the Riverhead Charter School to operate a charter school located in the Riverhead Central School District. The charter authorized the charter school to commence instruction in September 2001 with a projected enrollment of 247 students.

On March 13, 2001, respondent adopted a resolution to place before the school district voters an advisory proposition at the school district"s annual election on May 15, 2001. The proposition purported to authorize respondent to increase the proposed district budget by $2,250,000.00 in order to fund the charter school. On May 15, 2001, 908 voters voted in favor of the proposition and 2411 voters voted against the proposition.

This appeal was commenced on April 12, 2001. Petitioners sought an order staying respondent from placing the advisory proposition on the May 15, 2001 ballot. Petitioners' request for a stay was denied on April 27, 2001.

Petitioners allege that the proposition was designed to confuse and mislead the school district voters. Petitioners further contend that the proposition was unlawful. Respondent denies intentionally misleading the school district voters. Although respondent acknowledges that the Commissioner of Education discourages the use of advisory referenda, it asserts that such referenda are lawful.

The Commissioner of Education 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 Diane M., 39 Ed Dept Rep 709, Decision No. 14,356; Appeal of Studley, 38 id. 258, Decision No. 14,028). In this appeal, petitioners seek to prohibit respondent from placing a proposition on the May 15, 2001 ballot. Because the vote on the advisory proposition has occurred, the relief sought cannot be granted. Accordingly, the appeal must be dismissed as moot.

Although the appeal is dismissed as moot, I reiterate that advisory propositions and referenda are discouraged because they may infer voter determination of the issue (Appeal of Moonan, et al., 28 Ed Dept Rep 390, Decision No. 12,148). Such propositions and referenda are particularly ill-advised in situations where the board of education does not inform the voters that the matter may only be remedied by the Legislature (see, Application of Beadle, et al., 25 Ed Dept Rep 267, Decision No. 11,574). In the present case, the proposition sought voter input on whether to fund the charter school. Respondent acknowledges that it is legally obligated to provide payments to the charter school in accordance with Education Law "2856. The record in this proceeding does not indicate that respondent adequately informed the voters concerning this legal obligation.