Appeal of JEFFREY WAIT, from actions of the Board of Education of the Cherry Valley-Springfield Central School District, regarding a voter proposition.

Decision No. 16,353

(May 10, 2012)

Hogan & Sarzynski, attorneys for respondent, John Lynch, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the decision of the Board of Education of the Cherry Valley-Springfield Central School District (“respondent” or “board”) not to place a proposition before voters concerning the return of the golf team to the school’s athletic program.  The appeal must be dismissed.

The board called a special meeting for purposes of a capital project vote on December 15, 2011.  On or about November 8, 2011, petitioner filed a petition with the signatures of 35 district residents, requesting that the board include the following question on the December 15, 2011 ballot: 

“Would you support the return of the Golf Team to the schools [sic] extracurricular/athletic program?  Yes/No.” 

By letter dated November 29, 2011, the board denied petitioner’s request.  This appeal ensued and petitioner’s request for interim relief was denied on December 6, 2011.

Petitioner alleges that the board’s failure to place the question on the ballot at the December 15, 2011 special meeting runs contrary to the school district’s policy on the submission of propositions and violates Education Law §2008(2)(d).  Petitioner asks that I grant his request to have the question appear on the ballot for the school building project vote on December 15, 2011 in accordance with existing policies.

Respondent alleges that the petition fails to state a claim for which relief can be granted and asserts that it properly rejected petitioner’s request to put the question on the ballot because the Commissioner has regularly and consistently discouraged the use of advisory propositions. Before considering the merits, it is necessary to address a procedural matter.  Petitioner submits a document entitled “Affidavit of Reply” in response to respondent’s affidavit in opposition to petitioner’s request for interim relief.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Therefore, while I have reviewed the document entitled “Affidavit of Reply”, I have not considered those portions containing new allegations or exhibits.

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).  Petitioner asks that I grant his request to have the question appear on the ballot for the school building project vote on December 15, 2011.  Since the special meeting has already occurred, the relief sought cannot be granted.

Even if the appeal were not dismissed as moot, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).    

The district’s policy relating to the “submission of questions and propositions at annual elections and special district meetings” provides, in pertinent part, as follows:

The following rules and regulations shall apply to the submission of the questions or propositions at the annual elections or special district elections of this School District:

(a)  Questions or propositions shall be submitted by petition directed to the Clerk of the School District and shall be signed by twenty- five (25) qualified voters, or five percent (5%) of the registered voters of the District who voted in the previous annual election of Board members, whichever is greater.

(b) ...

(c) ...

(d)  Questions or propositions submitted in accordance with these rules and accepted will be printed on the ballot for the voting machine.

In accordance with this policy, petitioner submitted a petition to have an additional question added to the ballot at the December 15 special meeting.  By letter dated November 29, 2011, the board president notified petitioner that the question essentially sought an advisory opinion and, therefore, the board decided not to accept the question for inclusion on the ballot.  This determination is consistent with prior Commissioner’s decisions which have cautioned against the placement of advisory propositions on a ballot (seeAppeal of D’Orazio and Carey, 41 Ed Dept Rep 292, Decision No. 14,689; Appeal of Marshall, et al., 41 id. 219, Decision No. 14,667; Appeal of Moonan, et al., 28 id. 390, Decision No. 12,148) and with the district’s policy which indicates that only those propositions that are accepted by the board will be put on the ballot.  Therefore, this claim must be dismissed.

In light of the foregoing, I need not address petitioner’s remaining contentions.

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