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Decision No. 15,530

Appeal of JOHN SQUERI from actions of the Board of Education of the Lawrence Union Free School District regarding a referendum.

Decision No. 15,530

(February 14, 2007)


Elizabeth Meyerson, Esq., attorney for petitioner

Minerva & D’Agostino, P.C., attorneys for respondent, Melinda N. Sims, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals actions of the Board of Education of the Lawrence Union Free School District (“respondent”) relating to a referendum. The appeal must be dismissed.

During the summer of 2004, respondent closed an elementary school in the district and subsequently put the school property up for sale. On June 6, 2006, respondent voted to enter into an agreement for sale of the property for $27.5 million. The sale contract was specifically conditioned upon respondent obtaining voter approval at a school district election within 90 days of the execution of the contract. On the same date, respondent resolved that the funds received from the sale would be “used to fund capital improvements and capital repairs deemed necessary to the district buildings with the consent of the existing Board of Education; and to pay off any existing district debt.”

On June 20, 2006, respondent resolved to place two propositions before the voters at a special election to be held on August 7, 2006. Proposition 1 authorized the sale of the property. If Proposition 1 was approved, Proposition 2 authorized the proceeds of the sale to be used first for payment of bond indebtedness and thereafter be deposited “into a Capital Project Fund(s) for the purposes of financing the District’s capital construction projects and/or replacement of District facilities and infrastructure to begin during the 2006 fiscal year as follows: Construction, reconstruction, renovation and additions at the District’s several school sites . . . .” Proposition 2 proceeded to list more than 30 possible projects without reference to which project would occur at which school or without identifying any specific costs. The parties do not dispute that notice of the August 7, 2006 vote on the two propositions was appropriately published, although the record does not indicate the date of publication.

On July 1, 2006, the terms of two members of respondent expired and two new members were sworn in on July 3, 2006. The newly constituted board elected a new president and appointed new attorneys, among other things. On July 19, 2006, the new board voted to withdraw Proposition 2 from the vote scheduled for August 7, 2006. This appeal ensued. Petitioner’s request for interim relief was denied on August 2, 2006.

Petitioner contends that the withdrawal of Proposition 2 is a material change in the subject matter of the August 7 vote. He contends that by removing Proposition 2, the sale proceeds will be placed in the district’s unreserved general fund. He asserts that if the funds are not expended by the end of the fiscal year in which they are received, Real Property Tax Law (“RPTL”) §1318 requires that they be used to reduce the tax levy instead of being used for capital projects, which was the intent of June 6, 2006 board resolution approving the sale. Petitioner contends that respondent’s decision to withdraw Proposition 2 was arbitrary and capricious, an abuse of discretion and a violation of Education Law §1503. He also claims that respondent failed to give proper notice of the material change in the propositions in violation of Education Law §§2007 and 2010. Petitioner seeks to overturn respondent’s July 19, 2006 resolution withdrawing Proposition 2 from the ballot.

Respondent contends that it properly withdrew Proposition 2. Respondent asserts that it exercised its fiduciary duty in seeking timely approval of the sale of the property and in removing Proposition 2 because that proposition failed to properly and specifically identify what repairs were needed at each school and the anticipated cost of those repairs. Respondent contends further that it provided immediate notice of the change to the voters after the July 19, 2006 decision to withdraw the proposition, and that such notice was adequate prior to the August 7, 2006 vote.

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). Petitioner requested that the July 19 resolution removing Proposition 2 from the ballot be overturned, and the August 7 vote be stayed. Having denied petitioner’s request for interim relief, the vote took place on August 7, 2006 as scheduled without Proposition 2 and the voters approved Proposition 1. Accordingly, no meaningful relief can be awarded and the appeal must be dismissed as moot.

In light of this disposition, I need not address petitioner’s remaining contentions.