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Decision No. 14,962

Appeal of JOHN CHARLES BACH from action of the Board of Education of the Saugerties Central School District regarding a capital facilities project referendum.



(September 26, 2003)


Shaw & Perelson, L.L.P., attorneys for respondent, Margo L. May and Beth L. Sims, Esqs., of counsel

 MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Saugerties Central School District ("respondent") in presenting information concerning a capital facilities project referendum held in December 2002.  The appeal must be dismissed.

In October 2002, respondent issued a newsletter outlining a proposed $62,175,000 capital facilities project to create more space in the district"s schools.    Respondent presented information about the proposed capital construction and improvements in several newsletters and fact sheets that were sent to district voters.  In the literature, respondent stated that program needs and insufficient classroom space had forced respondent to hold classes in nontraditional spaces, such as former closets, storage areas or shower rooms, that had been renovated into classroom space.

Respondent also retained the services of a municipal finance consultant firm, to advise respondent as to the financial aspects of the proposed project, including the potential tax impact.  Based on a report from its finance consultant, respondent advised voters that it anticipated that State building aid would pay for 62.55% of the project, based on a then-available building incentive aid program that offered an additional 10% in State aid.  Respondent provided information about estimated tax consequences to district residents in the various newsletters and fact sheets, based on this anticipated amount of State building aid.

At a district election on December 10, 2002, the voters rejected the capital facilities project referendum by a substantial margin.  Pursuant to Education Law "416, respondent was entitled to present the same or a different capital project for a public vote not less than ninety days after the first vote.  Petitioner therefore commenced this appeal to challenge the information presented by respondent concerning the December 2002 referendum.

Petitioner contends that respondent intentionally inflated the potential State aid when it advised voters that State building aid would pay for 62.55% of the project, because respondent did not actually know what expenditures would be eligible for State aid or the exact percentage of State aid that would be available.  Petitioner also alleges that respondent inflated the pupil enrollment projections, and that respondent used public funds to hire a public relations firm to publish newsletters to exhort and persuade voters to vote in favor of the referendum.  Petitioner further alleges that respondent placed students in jeopardy through the use of renovated closets and shower rooms to conduct classes.  Petitioner requests that I determine whether respondent misled voters, and declare the amount of State building aid that the district would receive on this or any other capital facilities project referendum.

Respondent asserts that its estimates of State building aid and tax impact were based on conservative estimates provided by its finance consultant, and were clearly disclosed to the voters as "anticipated" or "estimated" figures.  Respondent notes that the exact amount of State aid cannot be determined until after the contract is approved by the voters and the State Education Department, and the contract is signed.  Respondent further denies that its newsletters or other literature were misleading or improperly attempted to persuade voters to vote in favor of the referendum.  Respondent states that the literature was purely factual and informative, and was a proper vehicle to explain to the voters the reasons for the project and outline the proposed construction and renovations.

As to the claims about inflation of enrollment figures, respondent states that it based the enrollment projections on data provided by the Town and Village of Saugerties.  After the vote, respondent learned that there had been an error in data provided by the Village.  In any event, respondent asserts that projected enrollment was not a reason for the proposed capital project.  Instead, respondent maintains the need for the improvements was caused by State-mandated curriculum changes, anticipated program changes, a need to update technology resources and the creation of a new and separate middle school, among other factors.  Respondent further states that the classrooms that were created from renovated nontraditional space are inspected annually, and are in compliance with Part 155 of the Commissioner"s regulations, pertaining to educational facilities.

Respondent also contends that the appeal is untimely insofar as it contests any actions taken more than 30 days prior to the filing of the appeal, that the appeal is moot because the referendum was defeated, and that petitioner  merely seeks an advisory ruling for any future referendum.  Respondent further states that, due to the substantial defeat, it is unlikely that it would submit the same referendum to the voters a second time.

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 Schechtman, 43 Ed Dept Rep ___, Decision No. 14,937; Appeal of T.D., 43 id. ___, Decision No. 14,927; Appeal of K.M., 41 id. 318, Decision No. 14,699).  The defeat of the referendum renders moot any challenge to the literature presented to the voters, estimate of tax impact, calculation of enrollment projections, or other information issued by respondent in connection with this capital project referendum.

It is also well established that the Commissioner does not issue advisory opinions or declaratory rulings in appeals brought pursuant to Education Law "310 (Appeals of Tesser and Kavitsky, 42 Ed Dept Rep ___, Decision No. 14,876; Appeal of a Student with a Disability, 42 id. ___, Decision No. 14,791).  Thus, I decline to render an advisory opinion as to what information can or should be included in informative materials issued by respondent for any future referendum, nor will I issue a declaratory ruling as to the amount of State aid that will be available for a future capital project.

As to petitioner"s contention that students are in jeopardy because nontraditional spaces in the schools have been converted to classrooms, petitioner offers no proof whatsoever of any such jeopardy.  Respondent asserts that the renovated classroom space is inspected annually in compliance with Part 155 of the Commissioner"s regulations, which governs the suitability and adequacy of educational facilities in schools.  In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of General, 43 Ed Dept Rep ___, Decision No. 14,948; Appeal of Vazquez, 42 id. ___, Decision No. 14,841).  Petitioner has failed to meet his burden of establishing any endangerment to students by use of these renovated spaces.

In view of the foregoing disposition, I need not address respondent"s remaining procedural objections.