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Decision No. 16,915

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. 16,915

(June 22, 2016)

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

ELIA, 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 May 17, 2012, respondent adopted a resolution to present a ballot proposition ("original proposition") to the voters at a special district meeting to be held on September 18, 2012, to expend $2,698,000 from the reserve fund for purposes of making improvements to the Jeffersonville Elementary School and the Lake Huntington High School.  This appeal ensued.  Petitioner's request for
interim relief was denied on June 26, 2012.[1]

Petitioner claims that the original proposition violates Education Law §3651 because it proposes expenditures from the reserve fund for purposes unrelated to the specific purposes for which the reserve fund was established.  Petitioner also challenges the establishment of the reserve fund itself.  Petitioner requests that I nullify respondent’s resolution to present the proposition to the voters, suspend the reserve fund, direct the disposition of its undistributed funds in accordance with Education Law §3651, and order respondent to comply with Education Law §3651 in the future. 

Respondent denies petitioner's allegations and contends that the appeal must be dismissed.

The record indicates that, following commencement of the instant appeal, petitioner moved to Salt Lake City, Utah.  Consequently, the matter is academic.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Strade, et al., 48 Ed Dept Rep 73, Decision No. 15,797; Appeal of Russo, 47 id. 429, Decision No. 15,744; Appeal of Houdek, 47 id. 415, Decision No. 15,740).  Since the record indicates that petitioner is no longer a district resident nor a taxpayer of respondent’s district, I find that he lacks standing to challenge respondent’s expenditure of district funds and its policies related thereto (see Appeal of Bd. of Educ. of Greenwood Lake Union Free School Dist., 47 Ed Dept Rep 446, Decision No. 15,749; Appeal of Levinson, 46 id. 309, Decision No. 15,517).  In this regard, I note that the appeal is also moot (see e.g. Appeal of a Student with a Disability, 55 Ed Dept Rep, Decision No. 16,881).  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).

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




[1] I note that, subsequent to the commencement of this appeal, on August 23, 2012, respondent voted to reschedule the date of the special district meeting to October 23, 2012, and to revise the ballot proposition ("revised proposition") to be presented at that meeting for voter approval.  The revised proposition was approved by the district voters at the special district meeting held on October 23, 2012.  Respondent accepted the vote results at a board meeting held on November 8, 2012.  The revised proposition differs from the original proposition as follows: (1) the revised proposition did not include the original proposition's reference to "repainting the windows on the 1938 building" as an additional proposed improvement to the Jeffersonville elementary school; and (2) the revised proposition included "construction of and the acquisition of the necessary equipment for the operation of a television broadcast system" as a new proposed improvement to the Lake Huntington High School.