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Decision No. 16,355

Appeal of SANDRA ROCKWELL from action of the Board of Education of the Stamford Central School District and Tonda Dunbar, Superintendent, regarding term limits of board members.

Decision No. 16,355

(May 10, 2012)

Hogan, Sarzynski, Lynch, Surowka and DeWind, LLP, attorneys for respondents, James A. Gregory, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals from a determination of the Board of Education of the Stamford Central School District (“respondent”) that the term of office of a school board member is five years.  The appeal must be dismissed.

On November 1, 1935, voters approved the formation of the Stamford Central School District (“district”) and established the term of office of school board members at five years.  According to the record, board members historically have been elected to serve a five year term.

Subsequently, two conflicting board policies, both dated July 9, 1992, were included in the district’s policy manual.  One policy established the term of office of board members at three years and the other established it at five years.  There is no record of respondent’s action adopting either of these policies nor is there a record that voters approved a resolution changing the term of office from five to three years.

The discrepancy in the board policies became public during the 2011 annual election.  By letter dated May 13, 2011, counsel to respondent opined that only voters could establish or modify the term of office for board members and that, therefore, both board policies were ineffective.  The proposition put before the voters on May 17, 2011 to fill a single vacancy on the board reflected the five year term of office originally approved by voters in 1935. 

Subsequently, respondent voted to abolish the two conflicting board policies relating to terms of office.  This appeal ensued.

Petitioner appears to support a three year term of office for board members.  It is unclear whether she is contesting the five year term for which a vacancy was filled at the May 17, 2011 election.  As relief, she seeks an order directing a “special election for the members of the Board of Education.”  Petitioner further states that a petition by district residents will be presented to respondent to limit board member terms of office to three years.

Respondent alleges that the appeal must be dismissed as untimely, moot and for failure to state a claim upon which relief can be granted. 

As an initial matter, I note that petitioner submits a newspaper article as an exhibit to her petition.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Wachala, 49 Ed Dept Rep 31, Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision No. 15,826; Application of Coleman, 45 id. 282, Decision No. 15,324).  Therefore, I have not considered such article for the veracity of its content.

A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (seeAppeal of Stepien, 48 Ed Dept Rep 487, Decision No. 15,926; Appeal of Darrow, 43 id. 394, Decision No. 15,029).

Although it appears that petitioner supports a three year term limit for board members, the petition does not clearly articulate what specific action is contested in this appeal nor does it clearly describe the remedy sought by petitioner.  Consequently, the appeal must be dismissed.

Moreover, to the extent petitioner is challenging the outcome of the May 17, 2011 election due to any misstatement of the term of office to be filled, the appeal is untimely.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).

The election took place on May 17, 2011 and this appeal was not commenced until July 18, 2011, outside the required time period.

To the extent petitioner challenges the existence of conflicting board policies regarding the term of office of board members, 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).  According to the record, respondent repealed both conflicting policies, rending any claims pertaining to them academic.

Finally, to the extent petitioner may be asserting that respondent should institute a three year term of office for board members, respondent is not authorized to do so without voter approval.

Pursuant to Education Law §§1703, 1804(1) and 2105(3) a board of education is authorized to submit a proposition to the voters at the annual meeting to increase or decrease the number of board members and to extend or decrease the term of office of board members, within the limits set forth in such statutes (Appeal of Swanson, 29 Ed Dept Rep 503, Decision No. 12,365).  Only the voters can authorize a change in the term of office of board members and there is no legal authority for a board of education to impose a local rule or policy that would prevent voters from doing so (seeAppeal of Benkovitz, 31 Ed Dept Rep 178, Decision No. 12,611).

As a final matter, I note that petitioner intends to present a petition by district residents, presumably to seek a proposition to change the term of office from five years to three years, and requests that a special election be held.  However, a proposition seeking to change the number of board of education members can be acted on only at the annual district meeting and not at a special district meeting or information meeting (seeAppeal of Fetta, 8 Ed Dept Rep 45, Decision No. 7,904).  Therefore, petitioner has failed to state a cause of action upon which relief can be granted.

In light of this disposition I need not address the parties’ remaining contentions.