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Decision No. 14,727

Appeal of GARY JOHNSON from action of the Board of Education of the Cornwall Central School District regarding proposed school construction.


Decision No. 14,727

(May 20, 2002)


Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges the alleged failure of the Board of Education of the Cornwall Central School District ("respondent") to act on a petition regarding the proposed construction of a new high school and various other construction and renovation projects. The appeal must be dismissed.

At a referendum held on June 6, 2000, district voters authorized the purchase of property, construction of a new high school and renovation of various other buildings (see, Appeal of Sheppard, 40 Ed Dept Rep __, Decision No. 14,579). At the June 25, 2001 meeting of respondent, petitioner submitted a petition (hereinafter, "Petition #1") requesting respondent "to re-evaluate its plans to build a high school on Rt. 94." At the July 30, 2001 meeting of respondent, petitioner submitted a revised petition (hereinafter, "Petition #2"). This petition requested respondent "to hold a Special District Meeting on or before Oct. 16, 2001 to vote on the following proposition: The Cornwall Central School District Board of Education shall re-direct the already approved $44,640,500 bond to expand and enhance the Main Street high school, including the construction of a swimming pool, and to construct a middle school on the district"s Angola Road property." Petitioner bases the instant appeal solely on Petition #2.

Petitioner alleges that respondent acted arbitrarily and in violation of Education Law "2008(2) when it failed to take formal action on Petition #2 within 20 days of the submission of such petition to respondent. Accordingly, petitioner asserts that I "must order [respondent] take formal action on Petition #2."

Respondent contends that it was authorized to reject Petition #2; that the appeal is moot; that certain of petitioner"s allegations are not ripe for decision; and that petitioner cannot maintain a class appeal.

I will first address several procedural issues. Respondent maintains that petitioner"s reply is untimely and I agree. Petitioner"s reply was to be served on or before October 23, 2001 (see 8 NYCRR "275.14[a]). The reply, however, is dated October 24, 2001 and was verified on October 26, 2001. Furthermore, my Office of Counsel received petitioner"s reply on or about November 8, 2001, and respondent asserts the copy it received was postmarked October 31, 2001. Finally, petitioner failed to submit a complete affidavit of service by mail. Accordingly, I find petitioner"s reply to be untimely and I have not considered it.

Moreover, petitioner may not bring this appeal as a class representative. Petitioner asserts in the caption of his petition that he is "a concerned citizen acting in behalf of the signatories of the attached petitions..." An appeal may be maintained on behalf of a class "only 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[a]). Petitioner must set forth the number of individuals he seeks to represent and show that all questions of law and fact would be common to all members of that class (Appeal of Phillips, 40 Ed Dept Rep 241, Decision No. 14,471). Here, petitioner asserts in his petition that "[a]dditional signatories are being collected for Petition #2." He has not, therefore, set forth the number of individuals he seeks to represent. Class status is therefore denied.

The appeal must also be dismissed as moot. It is well settled that the Commissioner will only decide 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 S.T., 41 Ed Dept Rep ___, Decision No. 14,709; Appeal of a Student with a Disability, 41 id. ___, Decision No. 14,680). Petitioner"s sole request for relief is that I order respondent "to take formal action on Petition #2 as submitted on July 30, 2001." According to the minutes of respondent"s July 30 board meeting, respondent"s president received Petition #2 at that meeting, but told petitioner that the matter "is not open for further discussion." Further, at its meeting of September 17, 2001, respondent adopted a resolution formally rejecting "the voter petitions presented on July 30, 2001...regarding changes to the District"s building project as legally insufficient and beyond the powers of the voters." Therefore, respondent has already taken the action requested by petitioner. Accordingly, the appeal is dismissed as moot.

Even if the appeal were not dismissed as moot, it would be dismissed on the merits. Education Law "2008(2) provides that a board of education shall call a special district meeting within 20 days of receiving a petition requesting such a meeting, where such petition states the purpose of the meeting and has the requisite number of signatures. The law further provides, however, that a board shall call such a special district meeting "unless it shall appear...(c) that a bond or note resolution has been adopted and such petition is not filed within twenty days after publication of notice of such resolution pursuant to section 81.00 of the local finance law..." (Education Law "2008[2][c]).

On June 28, 2000, pursuant to "81.00 of the Local Finance Law, respondent published in the local newspaper a legal notice, announcing its adoption on June 26, 2000 of resolutions approving the issuance of bonds relating to the building projects (an "estoppel notice"). Petitioner did not file Petition #2 until respondent"s July 30, 2001 meeting, more than one year after respondent published its estoppel notice. Accordingly, respondent acted appropriately in declining to call the special district meeting requested in Petition #2.

Furthermore, respondent has taken substantial steps to advance the construction project approved by the district"s voters. Respondent has borrowed millions of dollars pursuant to its duly adopted bond resolutions; has finalized plans and specifications for the project; and has solicited bids for the work to be done. In view of the significant steps already taken to implement the project, respondent cannot be said to have abused its discretion by refusing to place petitioner"s proposition before the voters (Appeal of Murray, 12 Ed Dept Rep 106, Decision No. 8,554; Appeal of Brown, 8 id. 70, Decision No. 7,920).

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