Appeal of KEN UY from action of the Board of Education of the Sullivan West Central School District regarding a capital reserve fund proposition.

Decision No. 16,268

(July 22, 2011)

Bond, Schoeneck & King, PLLC, attorneys for respondent, John A. Miller, Esq. of counsel

KING, JR., Commissioner.--Petitioner challenges an action of the Board of Education of the Sullivan West Central School District (“respondent”) relating to a capital reserve fund proposition.  The appeal must be dismissed.

On May 20, 2008, district voters approved a proposition to establish an $8 million capital reserve fund (the “reserve fund”), pursuant to Education Law §3651, “for the purpose of financing, in whole or in part, the cost of authorized alterations, construction or reconstruction of facilities, buildings or additions,..”  The probable term of the reserve fund is 10 years, ending on June 30, 2018.

On January 6, 2011, respondent adopted a resolution to present a ballot proposition to the voters to expend $5 million dollars from the reserve fund “for the purpose of completing the athletic fields and related site work at the District’s High School in Lake Huntington, consisting of alterations, improvements to facilities and construction, and installation of soccer, baseball, softball and football fields (including installation of synthetic turf), tennis courts, and related roads, walkways, retaining walls, hydrants, storm water drainage systems, public restrooms, and improvements to the main parking lot[.]”  This appeal ensued.  Petitioner’s request for interim relief was denied on February 16, 2011.

Petitioner claims that the proposition violates the Education Law because it proposes expenditures from the reserve fund for purposes unrelated to the specific purposes for which the reserve fund was established.  Petitioner seeks to nullify respondent’s resolution to present the proposition to the voters and an order directing respondent to comply with Education Law §3651 in the future. Respondent rejects petitioner’s claims and asserts that the appeal is moot. 

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  As noted above, petitioner’s request for interim relief was denied on February 16, 2011.  The vote was held on March 22, 2011 and the proposition was defeated.  Thus, no further meaningful relief may be granted regarding the resolution and the appeal is moot.

Petitioner surmises that respondent may submit the same or substantially the same proposition to the voters in the future and therefore submits that the matter is likely to recur.  To the extent that petitioners seek an order with respect to potential future propositions, in essence, petitioner seeks an advisory opinion.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

THE APPEAL IS DISMISSED.

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