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Decision No. 12,723

Appeal of RANDAL J. SAEGER from action of the Board of Education of the Lindenhurst Union Free School District relating to school district elections.

Decision No. 12,723

(June 26, 1992)

Cooper, Sapir & Cohen, Esqs., attorneys for respondent, Robert E. Sapir, Esq. of counsel

SOBOL, Commissioner,--Petitioner appeals from alleged improper actions regarding a school budget vote. The appeal must be dismissed.

After the voters in the Lindenhurst Union Free School District failed to approve a school budget for the 1990-91 school year, the board of education ("respondent") presented a budget and a referendum on October 31, 1990 to raise funds for capital repairs and improvements. Respondent prepared and distributed two bulletins advising the voters of the impending vote, the location of the polling places, and the impact of the proposition if it failed. The information was also published in local newspapers. Notification for the October 23, 1990 public hearing regarding the budget was published in two publications. Additionally, the Lindenhurst PTA and a student group prepared and distributed flyers to the voters regarding the budget and referendum. The voters thereafter approved the budget and referendum. This appeal was filed on December 7, 1991.

Petitioner asserts that respondent caused to be published flyers and notifications designed to encourage voters to support the budget which he alleges violates the New York Court of Appeals ruling in Phillips v. Maurer, 67 NY2d 672, 499 NYS2d 675. He further asserts that the legal notices regarding the vote were inaccurate. Although petitioner asks whether, based on his allegations, the vote should be set aside, he specifically asks that I refrain from taking such action. He also requests that I excuse his delay in filing this appeal.

Respondent raises several defenses. First, he asserts that the appeal is untimely pursuant to " 275.16 of the Commissioner’s Regulations. Next, respondent contends that I should dismiss the petition because it seeks an advisory opinion. Finally, the board asserts that it did not violate the prohibition against the use of public funds to encourage voters to support the budget addressed by the court in Phillips v. Maurer.

With respect to the procedural issues, an appeal must be instituted within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). This appeal, which challenges a vote that was taken on October 31, 1990, was commenced on December 7, 1990. The failure to commence a timely appeal may be excused for good cause shown. Petitioner asserts that his late filing was due, in part, to his ignorance of the appeal process. Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Pitney Bowes, Inc., 31 Ed Dept Rep 290; Appeal of Casid, 30 id. 332). Because I find no unusual circumstances to excuse the delay, the appeal must be dismissed as untimely (Appeal of Heinz, 31 Ed Dept Rep 326).

Concerning petitioner’s request for relief, the Commissioner does not issue advisory opinions in appeals brought pursuant to " 310 of the Education Law (Appeal of Children with Handicapping Conditions, 31 Ed Dept Rep 21; Application of Child with a Handicapping Condition 30 id 262; Matter of Board of Education Bellmore-Merrick Central High School District, 19 id. 125; Matter of McGrady, et al., 16 id. 131). Because petitioner does not seek specific relief, but only asks that I render an advisory opinion on whether the vote should have been set aside, this is not a proper demand for relief pursuant to 8 NYCRR " 275.10 and the appeal must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE