Union Free School Dist. No. 7, Town of Greenburgh, Westchester County v. Nowicki

• Decision Date: 03 June 1968
• Docket Number: No. 7,T,7
• Parties: UNION FREE SCHOOL DISTRICT NO. 7, TOWN OF GREENBURGH, WESTCHESTER COUNTY, Plaintiff, v. George L. NOWICKI, President; O. Lloyd Darter, Vice-President; Richard Dunlap; Robert Bertocchi; Mrs. Renee Hertz; Paget L. Alves, Jr.; Arthur Olick; Daniel Nadler; and Hilton Wilson; individually and jointly as constituting the members of the Central School Districtown of Greenburgh, Westchester County, Defendants.
• Court: New York Supreme Court

Page 679

291 N.Y.S.2d 679

57 Misc.2d 66

UNION FREE SCHOOL DISTRICT NO. 7, TOWN OF GREENBURGH WESTCHESTER COUNTY, Plaintiff, v. George L. NOWICKI, President; O. Lloyd Darter Vice-President; Richard Dunlap; Robert Bertocchi; Mrs. Renee Hertz; Paget L. Alves, Jr.; Arthur Olick; Daniel Nadler; and Hilton Wilson; individually and jointly as constituting the members of the Central School District No. 7, Town of Greenburgh, Westchester County, Defendants.

Supreme Court, Westchester County.

June 3, 1968.

[57 Misc.2d 67] Levin, Kreis, Ruskin & Gyory, New York City, for defendants.

Irving Anolik, New York City, for plaintiff.

DECISION

HUGH S. COYLE, Justice.

This is a motion to dismiss an action for declaratory judgment. The plaintiff is a Union Free School Board in one of two districts that were merged a year ago to form a new Central School District. The new Central Board and its members are the defendants who move here for dismissal.

The complaint alleges that members of the new board are acting beyond their authority when they act as a board. Plaintiff asks that the new board be declared 'not in existence' and without 'power to act officially until at least August 1st, 1968'. The plaintiff also asserts that it is the sole board in power until July 1st, 1968, in the area of Union Free School District No. 7.

So far as can be gathered in the complaint and the papers before the Court on this motion, the only alleged interference by the new Central Board results from its activities preparing for the school year which commences July 1st, 1968, conducting a bond referendum, and from the publicity which has been given to these activities. The motion papers relate that the Union Free Board has conducted negotiations with employees in the Union Free School system for the school year commencing July 1, 1968. At the same time the new Central Board has conducted negotiations for the entire system (which includes the bargaining unit covering both of the old Union Free School Districts). This suit appears to have followed the response by the counsel of the Commissioner of Education to an inquiry by the Central Board which was directed to him on the subject of negotiating employee contracts for the coming school year. The attorney for the Commissioner of Education held that any action by the Union Free School Board 'which purports to carry beyond the end of the current school year * * * is ultra vires and void.'

The dispute arising over this merger is not new to the Courts of this State. This appears to be the third, or possibly the fourth, case to reach the Courts since the time of the Commissioner's order laying out the district, and the papers indicate additional matters brought or pending before the Commissioner of Education. Apparently of major importance in the current situation is the fact that Union Free School District No. 7 had 'no facilities of its own for senior high school students'. Bd. of Education of Union Free School District No. 7 v. Allen, 29 A.D.2d 608, 285 N.Y.S.2d 825 (3rd Dept. 1967)--motion to appeal denied 21 N.Y.2d 644, 288 N.Y.S.2d 1027, 235 N.E.2d 927. Obviously the dispute cannot be indefinitely the subject of litigation. Whatever the origins of the original problem, it now appears that the old school district is about to pass out of existence, and a new Central Board must assume additional burdens placed upon it by law within a short time. It must provide for all the students in the area.

Most of the objections, if not all, raised by the Union Free complaint are matters of fact concerning which there is little question. The main facts are not in dispute. On July 27, 1967 the Commissioner, by order, laid out the new Central School District. The District was organized by an election which took place on August 5th, 1967 and the board members were elected at a school meeting held on September 7th, 1967. Under Article 37 of the Educational Law, the new Central School District came into existence in June, 1967, i.e., the instant the Commissioner issued 'an order'; it was organized when the voters approved it. Finley v. Spaulding, 274 A.D. 522, 85 N.Y.S.2d 116, (3rd Dept.1948). When the school meeting elected the Central Board last September, it became an entity at once. This is implicit in the decision in the Appellate Division, 3rd Dept. (commenced by the plaintiff here as a petitioner) where last September the Court rendered an opinion denying a stay of the board election, but ordered the new board to take no 'official action pending the hearing and submission' of the case. (Exhibit D of the moving papers). The same Court, at the request of the new Central Board, modified its earlier order last October 'so as to permit officers or board to take whatever action may be necessary in regard to the acquisition of real property for school district purposes'. (Exhibit E of plaintiff's moving papers). It seems to follow from these opinions that the Court there assumed that the new Central Board was, except for the Court's order, authorized to exercise its statutory powers. In December the Third Department rendered its opinion dismissing the Article 78 petition. Bd. of Ed. of UFSD No. 7 v. Allen, 29 A.D.2d 608, 285 N.Y.S.2d 825, supra, terminating any remaining stay of action by the new Central Board.

The question of what the new Central Board's powers have been, since it came into existence is answered for the most part by Sections 1804 and 1805 of the Education Law, and to some extent by the Local Finance Law, Section 24.00. Section 1804, subdiv. 5(a) and (b) allowed the new Central School Board to raise taxes for the existing obligations for the Union Free School Boards. Subdiv. 6(a) specifies that the title to all property of the Union Free School Boards passed to the new Central District at the time of its 'organization', i.e., in August, 1967. Indeed, it seems quite plain from a reading of subdiv. 6(a) of Section 1804 that the Union Free Board has little function after June 30th of the present year, since the balance of funds on hand as of July 1st are to be turned over to the new Central School District. For this purpose the old Union Free School Board is permitted under Section 1805 to hold over in office a month beyond its normal term. The general language of Section 1805 regarding the 'conducting and maintaining school' etc., must be read in the light of the transition period set forth both in Sections 1804 and 1805. The Union Free District presently is conducting the Union Free Schools and will through the month of June, following which it will have a month to wind up accounts. Since the 'organization' of the new school district took place on August 5th, 1967 the only obligations the Union Free Board has authority to discharge are those which existed on August 5th, 1967. Obviously the old Union Free Board no longer has the authority or obligation to dispose of funds after June 30th of this year (except for outstanding bills and transfer to the Central Board), to commit school personnel, or to assign or encumber any of the school property to which it no longer has title. The Court concurs in the conclusion of the counsel for the Commissioner of Education that any attempt by the Union Free Board to provide for the schools after June 30th, 1967, is 'ultra vires and void'.

The local Finance Law explicitly covers this situation insofar as the financial duties and obligations of the new public corporations are concerned. Section 24.00(d.1) refers to newly created school district corporations, and empowers them to raise money by tax anticipation notes prior to the first levy of taxes. Under the Education Law, Section 1804, with reference to the Local Finance Law, the new district can levy taxes in the present year for the coming school year. Hence, it seems that the purpose of the Local Finance Law is to empower the new body to defray its expenses following its coming into existence and before it can raise such funds by taxes.

It is the opinion of the Court that the new Central Board has acted within its statutory powers preparing for the new school year, in negotiating wage contracts for the new school year, in preparing to and raising funds by a bond referendum and in incurring obligations. The corollary of this is that the old Union Free Boards are not the exclusive authorities in the are, but authorities in the area, but are termed 'existing districts" (Section 1804) with limited authority until June 30th next, and with a mere accounting role in the month that follows. On the merits the complaint in this matter has no substance and should be dismissed. It fails to state a cause of action. Newburger v. Lubell, 257 N.Y. 383, 386, 178 N.E. 669 (1931); Jacob Goodman v. N.Y. Tel. Co., 309 N.Y. 258, 128 N.E.2d 406 (1955).

The plaintiff asserts, however, that there may be another defect in the formation of the new Central School Board which prevents exercise of its powers, suggesting that either the election of August 5th, 1967, was invalid, or that there are constitutional defects. The plaintiff refers to its pending appeal from a decision of Mr. Justice Cooke, dated December 8th, 1967, (apparently unreported). This decision dismissed plaintiffs' claim that the organization election of August 5th, 1967, was invalid (Exhibit C of the moving papers). Apparently, the plaintiff concedes these facts, but argues in its answering papers that the old Union Free District 'shall continue to exist unless it is determined that the August 5th, 1967 vote was legal'. The difficulty with this argument is that the Supreme Court of this State has already done just that. The matter has been decided adversely to the plaintiff. The pendency of an appeal does not alter the present status. Had there been no opinion from the Supreme Court, the mere pendency of a suit would not per se alter the status of the new Central Board. As of the writing of this opinion the various opinions in the Article 78 petition...