Appeal of JOSPEH BERHALTER and JOSEPH CONTI from action of the Board of Education of the Bridgehampton Union Free School District regarding a proposition.

Decision No. 15,910

(April 2, 2009)

Law Offices of Mark A. Cuthbertson, attorneys for petitioners, Mark A. Cuthbertson and Jessica P. Driscoll, Esqs., of counsel

Guercio & Guercio, LLP, attorneys for respondent, Jeffrey Mongelli, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Bridgehampton Union Free School District (“respondent” or “board”) rejecting a petition to place a proposition on the ballot at the district’s May 20, 2008 annual election.  The appeal must be dismissed.

In the spring of 2008, petitioners were members of the board.  At that time, the district’s high school enrolled approximately 55 students in grades 9-12.  On March 20, 2008, petitioner Berhalter submitted a petition and proposition to respondent with the requisite number of signatures.  That proposition read as follows:

Make BHUFSD a Pre-K-8, and phase out the HS starting with this years [sic] 8th grade.  The HS would continue for the next three years, dropping a class each year.

Respondent rejected the proposition.  On April 21, 2008, petitioner Berhalter presented a second petition and proposition, as follows:

Make Bridgehampton a Pre-K through 8, and phase out the High School starting with the 08-09 8th grade.  Tuition out the 08-09 8th grade to one of three neighboring school districts for the 9th grade.  The High School would continue for the next three years, dropping a class each year.  The appropriation required is $660,150 for the 09-10 Budget Year.

On April 28, 2008, respondent held a public workshop meeting at which the second proposition was discussed.  According to the board president, he read aloud a list of concerns about the proposition at the beginning of the meeting.  In addition, a member of the school audit committee who was also a parent, together with the superintendent, presented an analysis concerning the costs of paying tuition to other districts for Bridgehampton students.  The board voted five to one to reject the second proposition “due to inaccurate and insufficient financial analysis of the proposal.”  Petitioner Berhalter was not present at this meeting.  Petitioner Conti was the only board member who voted for the proposition.

Following the April 28, 2008 meeting, petitioner Berhalter made several requests to the superintendent and board president for additional information.  He was eventually provided with copies of the slide presentation from the board meeting.  The board president also provided petitioner Berhalter with the list of concerns he read at the beginning of the meeting, which was not included in the meeting minutes.  This appeal ensued.

Petitioners contend that respondent improperly rejected the petition to place the second proposition on the ballot.  They contend further that the board acted arbitrarily and capriciously because the minutes of the April 28, 2008 meeting fail to articulate the reasons for rejecting the proposition.  They request that I order respondent to submit the proposition to the voters.

Respondent contends that the appeal is moot to the extent that the election and vote took place on May 20, 2008.  Respondent asserts that it properly rejected the proposition because its purpose is beyond the power of the voters, it did not include the necessary appropriation and is ambiguous in several respects.  Respondent’s president also avers that at the beginning of the April 28, 2008 meeting, he read aloud a list of six concerns regarding the proposition, five of which raised unanswered financial questions, and a discussion ensued.[1] Respondent also contends that petitioners have failed to meet their burden of proof and that portions of the reply contain new information that should not be considered.

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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 C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  To the extent that petitioners sought to have the proposition placed before the voters at the May 20, 2008 annual meeting, the appeal is moot because that election has already taken place.  The appeal is also moot because the proposition called for phasing out the high school beginning with the 8th grade in the 2008-2009 school year.  Since we are more than midway through the school year, it is no longer possible to implement the exact plan proposed in the proposition.

Even if the appeal were not dismissed as moot, it would be dismissed on the merits.  Petitioners argue that the proposition was legally sufficient and respondent must present a legally sufficient proposition to the voters.  Education Law §2035(2) provides that “any proposition may be rejected by the . . . board of education if the purpose of the proposition is not within the power of the voters, or where the expenditure of moneys is required by the proposition, if the proposition fails to include the necessary specific appropriation” (seeAppeal of Johnson, 44 Ed Dept Rep 382, Decision No. 15,206; Appeal of Lawson, 36 id. 450, Decision No. 13,774; Appeals of Cappa, 36 id. 278, Decision No. 13,724).

Petitioners contend that respondent improperly rejected the proposition because district voters have the authority to decide to contract with other school districts for the education of district students.  Pursuant to Education Law §2040(1)(c) and (d), voters may decide:

To contract for a period of not less than two and not more than five years for the education of all the high school pupils of grades seven to twelve, inclusive, of such district in another school district in this state or in an adjoining state, instead of maintaining a home high school for such grades.

or

To contract for a period of not less than two and not more than five years for the education of some of the pupils of grades seven to twelve, inclusive, of such district in another school district in this state or in an adjoining state provided that such district maintains a home high school for such grades.  Nothing herein shall require a district to enter into a written contract for the education of its high school pupils where the term is for a period of less than two years.

While the voters may decide whether to contract with other districts, §2040(2) provides that “[s]uch contract may be made with one or more school districts.  The designation of the school districts with which such contracts may be made shall be made pursuant to the commissioner’s regulations.”  Section 174.4 of the Commissioner’s regulations authorizes only the board of education to designate, by resolution, the receiving school district or districts for contract purposes.

In Appeal of Riordan, et al. (27 Ed Dept Rep 182, Decision No. 11,913), the Commissioner found that a voter proposition which designated specific school districts with which the district would contract was not within the power of the voters.  Although the language in petitioners’ proposition did not go so far as to specifically name the receiving districts, it authorized the district to “Tuition out the 08-09 8th grade to one of three neighboring school districts for the 9th grade.”  Such language unduly restricts the board’s authority by limiting its choices of receiving districts to only one of three districts, which must be neighboring, whereas the statute and regulation authorize the board to designate the receiving school district or districts, and does not restrict the geographic location to neighboring districts.  Accordingly, the proposition as presented exceeded the power of the voters and respondent properly rejected the proposition on this basis.

In light of the above disposition, I need not address the parties’ remaining contentions.  I note however, that respondent is not obligated to make revisions to the language of a proposition to remove any ambiguities (Appeal of Cole, et al., 37 Ed Dept Rep 407, Decision No. 13,891; Appeal of Como, 30 id. 214, Decision No. 12,438; Appeal of Martin, 29 id. 148, Decision No. 12,248).

THE APPEAL IS DISMISSSED.

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