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Decision No. 15,355

Appeal of the NEW YORK CHARTER SCHOOLS ASSOCIATION, INC., MARC TILLMAN and CARA COLLINS REMMERT from action of the Board of Education of the City School District of the City of Albany and Eva Joseph, Superintendent, regarding a voter referendum.

Decision No. 15,355

(January 24, 2006)


Hinman Straub, P.C., attorneys for petitioners, Kevin P. Quinn, Esq., of counsel

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

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the City School District of the City of Albany ("respondent board") to place a non-binding proposition concerning charter school funding before the school district's voters. The appeal must be dismissed.

In March 2005, respondent board adopted a resolution to place a non-binding proposition before its voters on May 17, 2005. The proposition essentially asked district voters if they support the state requirement that the district pay approximately $10.2 million to charter schools located within the district in the 2005-2006 school year.

This appeal ensued. Petitioner's request for interim relief was denied on May 3, 2005. On May 17, 2005, 996 voters answered "yes" to the district's non-binding proposition, while 4,519 voters answered "no."

Petitioners claim that respondents have "vigorously opposed the establishment of public charter schools in the district," and that their actions are part of a "political agenda" against these schools. Petitioners argue that respondent board's use of public funds to place the non-binding proposition before voters violates the State Constitution. Petitioners also challenge respondent board's legal authority to approve the non-binding proposition. In addition, petitioners argue that respondent board abdicated its duty to carry out the Education Law.

Respondents deny opposition to charter schools, but admit authorizing the district to place a non-binding proposition before its voters. According to respondents, a referendum was needed as a "litmus test" of voter sentiment on the issue of charter school funding and to assess the level of support that charter schools have in the district. In addition, respondents also claim that placing the proposition on the May 17, 2005 ballot cost the district virtually nothing, and they maintain that the respondent board's authorization of the non-binding proposition was a proper exercise of its authority. Respondents also argue that petitioners lack standing and that certain allegations are untimely.

The appeal must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). In this appeal, petitioners only sought to prohibit respondents from placing the non-binding proposition on the May 17, 2005 ballot. Because the vote on this proposition has occurred, the relief sought cannot be granted, and the matter is moot.

Since the appeal is moot, I need not address the remaining contentions or defenses raised herein. However, I reiterate that advisory propositions and referenda are discouraged because they may infer voter determination of the issue ( Appeal of Marshall and Troge, 41 Ed Dept Rep 219, Decision No. 14,667; Appeal of Moonan and Richards, 28 id. 390, Decision No. 12,148).