ORDERED, that in accordance with Section 7804 of the CPLR you are required to serve
upon the undersigned on or before April___, 1998, your answering affidavits and accompanying
papers, if any, and upon your failure to do so, application will be made upon the return day for the
relief prayed for in the Petition as provided in Section 7804(e) of the CPLR.
Dated: Monticello, New York
April 10, 1998
________________________________
Anthony T. Kane, S.C.J.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY
------------------------------------- Index No.:
In the Matter of the Application of
MARK LEWIS SCHULMAN, JILL SCHULMAN, JEFFREY
HERZOG, MIRIAM HERZOG, JEFFREY KARASIK,
DEBORAH KARASIK, JOHN BARBARITE, JANET
LYNN, ISADORE SHAMES and MURIEL SHAMES, from
action of the Board of Education of the Monticello Central
School District to invalidate a school district Bond
Referendum.
Petitioners,
-against- ORDER TO SHOW CAUSE
BOARD OF EDUCATION of the MONTICELLO
CENTRAL SCHOOL DISTRICT and THE
COMMISSIONER OF EDUCATION of the State of New
York,
Respondents,
For a Judgment under Article 78 of the Civil Practice Law and
Rules Annulling Determination that Dismissed Petitioners'
Appeal Seeking to Invalidate the March 26, 1997 Monticello
Central School District Bond Referendum
-------------------------------------------------------------------------
TO THE SUPREME COURT OF THE STATE OF NEW YORK,
COUNTY OF ALBANY:
Petitioners respectfully allege:
PARTIES
1. Petitioners are residents of the Towns of Thompson and Mamakating, Sullivan County, New York, and are taxpayers in the Monticello Central School District.
2. Respondent, Richard P. Mills, as New York State Commissioner of Education,
reviewed and decided the Appeal to the Commissioner, Richard P. Mills, titled In the Matter of the
Appeal of Mark Lewis Schulman, Jill Schulman, Jeffrey Herzog, Miriam Herzog, Jeffrey Karasik,
Deborah Karasik, John Barbarite, Janet Lynn, Isadore Shames And Muriel Shames, from action of
the Board of Education of the Monticello Central School District to invalidate a school district Bond
Referendum, copy attached as Exhibit A.
3. Respondent, Board of Education of the Monticello Central School District of the was
and is the administrative body which directs the activities of the Monticello Central School District.
4. Petitioner has complied with statutory provisions, and has, prior to bringing this action
and within 30 days of the act complained of, filed an appeal to the Commissioner of Education of the
State of New York, with a copy of same being served upon a representative of the respondent school
district.
5. Respondent, Board of Education of the Monticello Central School District is charged
by law with administering the affairs of said district in compliance with the Education Law and the
Rules and Regulations promulgated by the State Education Department and office of the
Commissioner of Education.
6. The respondent, Richard P. Mills, was Commissioner of Education of New York
hereinafter referred to as Commissioner at the time the appeal was filed and who rendered the
Decision appealed herein.
7. That the Commissioner is authorized to examine and decide appeals and petitions by
persons conceiving themselves aggrieved by any official act or decision of any officer or school
authority concerning any matter pertaining to school districts.
FACTS
8. On March 26, 1997, the Monticello Central School District conducted a referendum
to bond the construction of a new middle school at the maximum cost of $19,813,281.00, and the
construction of additions to and reconstruction of various school buildings at a maximum estimated
cost of $14,291,413.00, including site work and other incidental improvements; and providing that
the aggregate amount of $34,104,694.00 be raised by a tax levy to be collected in annual installments,
with District obligations to be issued in anticipation thereof.
9. Prior to the March 26, 1997 referendum the Monticello Central School District
distributed Literature to voters within the school district, including:
a) An informational packet entitled Classroom 2000 - Reduced Proposal that declared:
There are two very significant changes in this reduced version of the classroom 2000 Proposal which combined have resulted in a forty percent (40%) reduction in the increase in tax rates required to finance the local share of this reduced proposal.
An additional source of revenue of $10,000,000.00 from the BOCES' commitment to lease the present middle school. This additional revenue will directly decrease the cost of this proposal to the local taxpayers thereby reducing the cost to local taxpayers.
The revenue necessary to fund this proposal is shown in the graph below. The New York State Department of Education will provide a projected $13,993,155 of the total project cost through building aid. In this reduced proposal is the new revenue source of $10,000, 000 from the BOCES commitment to lease the middle school.
The tables at the right provide examples of the additional projected annual payment in taxes, and amount monthly, to support the annual principal and interest payment for this reduced proposal. . . . The average annual payments for this reduced proposal are 40% less than those of the December 11, 1996 proposal.
b) A Monticello Central School-Weekly News Bulletin, dated 03-14-97, distributed to the parents of children within the school district, that declared: SULLIVAN COUNTY BOCES RE-CONFIRMS COMMITMENT TO ENTER INTO LONG TERM LEASE OF MONTICELLO MIDDLE SCHOOL GENERATING 10 MILLION IN REVENUE FOR THE MONTICELLO CENTRAL SCHOOL DISTRICT OVER A PERIOD OF 20 YEARS
The cost of the Classroom 2000 - Reduced Proposal is $34.1 million. This
represents a reduction of $7.7 million from the original Classroom 20000 Proposal.
The reduction of $7.7 million in overall cost of the project coupled with the additional $10,005,000 in revenue from the BOCES agreement will significantly reduce the impact on Monticello Central School District taxpayers.
The following are frequently asked questions about the original and reduced
Classroom 2000 Proposals.
Q. How is the reduced proposal different from the original proposal submitted to the voters on December 11, 1996?
A. The original proposal was for $41.8 million. The current proposal is for $34.1 million. The proposal has been reduced by $7.7 million and $10 million in new revenue from the BOCES lease of the middle school will further reduce the cost to local taxpayers.
Q. Why wasn't the $10 million in revenue from the BOCES lease of the middle school included in the original proposal?
A. At the time of the original proposal, discussions were under way with BOCES regarding the leasing of our middle school. At that time however, no firm commitment existed and we felt it would have been irresponsible to include $10 million in lease payments at that time. The BOCES Board of Education has now approved the terms of a lease and the receipt of the $10 million is assured.
10. The Classroom 2000 - Reduced Proposal literature, distributed to voters within the school district prior to the March 27, 1997 referendum contained distortions and untruths where it declared that the Monticello Central School District had a firm commitment from Sullivan County BOCES to lease the middle school, for $10,000,000 for a period of twenty (20) years and that "this
additional revenue will directly decrease the cost of the proposal to the local taxpayers."
11. On March 27, 1997 and upon information, to this very day, the MCSD did not have
and does not have a legally binding commitment, firm of otherwise, from BOCES to lease the middle
school for $10 million over 20 years and, in fact, neither entity had approved a proposed lease or
lease terms for the middle school building.
12. The MCSD never passed a resolution pursuant to Education Law § 403-a to lease the middle school property to Sullivan County BOCES nor has it fulfilled the requirements of the education law that are prerequisites to the creation and approval of such a lease.
13. Sullivan County BOCES passed a resolution on April 8, 1997, twelve days after the March referendum and after receipt of a Freedom of Information Request inquiring of the existence of such a resolution:
On the recommendation of the District Superintendent and a motion by Mrs. Pantel, seconded by Mr. Bauernfeind, the Board authorized Sullivan County BOCES to enter into a lease arrangement with Monticello Central School District for the Middle School for a period of (two) 10 year agreements in the amount of 10 million dollars in accordance with the payment schedule developed and approved by Monticello Central School. Subsequently to be written into a lease to be effective approximately September 1, 1999.
14. The resolution passed by BOCES postdated the referendum and literature distributed
in anticipation of the referendum and was not legally binding since neither a lease or the terms thereof
were approved. An agreement to agree is no agreement at all.
15. Further, BOCES did not pass a resolution pursuant to Education Law § 1950(4)(p)(a) to lease the middle school property from the Monticello Central School District nor has it fulfilled the requirements of the education law that are prerequisites to the creation and approval of such a lease.
16. The literature distributed by the Monticello Central School District to voters within the district declared to voters that "BOCES Board of Education has now approved the terms of a lease and the receipt of the $10 million is assured" and "this additional revenue will directly decrease the cost of the proposal to the local taxpayers", when, in fact, the terms of a lease had not been approved by BOCES and the receipt of $10 pursuant to that lease was more unsure than secure.
17. The MCSD willfully and intentionally disseminated the foregoing
misinformation for the sole purpose of misleading voters to vote in favor of the referendum believing that $10 million of the $34 million Bond Act would be offset by rental income when, in fact, the receipt of rental income from the middle school property was anything but "assured."
18. Therefore, voters entered the voting booths on March 27, 1997 believing and having no reason not to believe that the $34 million bond referendum would be offset by $10 million in rental income and that their school tax liability as a result of the Bond Act would be affected minimally as set forth in the literature disseminated by the MCSD. The referendum passed, 1420 votes in favor, 1245 votes against.
19. One must conclude that had the voters been properly informed and had not been misinformed, the March 26, 1997 referendum would have been defeated as its predecessor had been, since without the assurance of the $10 million lease offset, the tax effect of the Bond Proposals was identical.
20. The voters in the MCSD were further mislead by the information
disseminated by MCSD before the referendum that failed to inform the said voters that the MCSD currently contributes 30.9% of the administrative costs of Sullivan BOCES and that the anticipated revenue of $10,000,000 during the twenty year term of the lease was subject to a $3,090,000 contribution to BOCES by the MCSD which would be raised through real estate taxes thereby substantially decreasing the declared benefit of the said lease and the "reduced" Bond Proposal.
21. The voters in the MCSD were further mislead by information disseminated by MCSD before the referendum that failed to inform the said voters that of the $7.7 million in Building Maintenance projects that were deleted from the reduced proposal at least $5 million of those projects would be transferred to the annual MCSD budgets over five (5) years thereby substantially increasing the annual real property tax impact upon District taxpayers.
22. That the action of the MCSD in disseminating false information containing distortions and untruths intending to mislead voters and induce them to vote in favor of the March 27, 1997 bond issue were improper and contrary to law and constituted "improper conduct" sufficient to Invalidate the March 26, 1997 MCSD Bond Referendum.
23. That the action of the MCSD in disseminating false information containing distortions and untruths intending to mislead voters and induce them to vote in favor of the March 27, 1997 bond issue were "so pervasive in nature as to vitiate the electoral process" and " constituted such pervasive conduct that "the fundamental fairness of the election is vitiated" that the March 26, 1997 MCSD Bond Referendum be invalidated.
24. That the action of the MCSD in disseminating false information containing distortions and untruths intending to mislead voters and induce them to vote in favor of the March 27, 1997 bond issue disenfranchised voters, within the district, of their constitutionally protected right to vote in that:
a) Voters relying upon the misinformation voted in favor of the referendum when, if properly informed, and not misinformed, would have voted against it; and/or
b) Voters relying upon the misinformation who did not vote in the March 27, 1997 referendum when, if properly informed, and not misinformed, would have exercised their right to vote and voted against it.
25. That petitioner appealed this action to the Commissioner of Education requesting that he Invalidate the March 26, 1997 Monticello Central School District Bond Referendum.
26. That the Commissioner of Education in his Decision (Exhibit B), rejecting applicable case law rendered a decision dated March 13, 1998 that held, "I find that it was not unreasonable for the district to include in its literature information about the BOCES' commitment to lease the middle school, contingent upon the passage of the referendum" and "While respondent may have been overly optimistic in its depiction of the lease situation when it stated in the March 17 flyer that the receipt of the $10 million is assured,' it was not inaccurate for respondent to assert that it had a commitment from BOCES" and to conclude, "I find that respondent's information when provided to voters when taken as a whole, was not misleading. ... To the extent that someone could find otherwise, I find that it was not intentionally or willfully misleading. Accordingly, petitioners have failed to meet their burden of proving improper conduct by respondent."
27. The determination of the Commissioner of Education was without any discernible legal rationale in view of the fact that there was no legally binding commitment, firm or otherwise, between MCSD and BOCES for the lease of the middle school building and the depiction of the "lease situation" by the commissioner as "optimistic" was clearly arbitrary and capricious since there was no lease, no lease terms had been agreed to, their was, literally, no binding legal agreement between the parties, at all, whatsoever.
28. That the Commissioner's Decision being contrary to case law and his findings of fact being irreconcilable with the reality of the occurrence was without any legal rationale and was an arbitrary and capricious determination, contrary to law.
29. No previous application for relief herein requested has been made to any other Court or Judge.
WHEREFORE, petitioner prays for a judgment reversing the decision of the respondent Commissioner, and directing that the results of the referendum held on March 26, 1997, by the Monticello Central School District be invalidated, and for such other and further relief as is just and proper, together with costs and disbursements of this proceeding including counsel fees.
Dated: Monticello, New York
April 10, 1998
_________________________
Mark Lewis Schulman, Petitioner
VERIFICATION
STATE OF NEW YORK )
COUNTY OF SULLIVAN) SS.:
Mark Lewis Schulman, being sworn says: I am the plaintiff in the action herein; I have read the annexed Petition, knows the contents thereof and the same are true to my own knowledge, except to those matters therein which are stated to be alleged on information and belief, and as to those I believe them to be true.
_________________________
Mark Lewis Schulman, Plaintiff
Sworn to before me on the 10th day of April, 1998.
_________________________
Notary Public
