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Decision No. 14,571

Appeal of JANET M. GOLTZ from action of the Board of Education of the South Country Central School District, South Country Library and Brookhaven Free Library concerning library funding.

Decision No. 14,571

(May 7, 2001)

Jeffrey L. Bragman, P.C., attorney for petitioner

Kevin A. Seaman, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner challenges action of the Board of Education of the South Country Central School District ("respondent board") concerning the funding of two association libraries. The appeal must be dismissed.

Petitioner initially commenced a proceeding under Article 78 of the Civil Practice Law and Rules in Supreme Court, Suffolk County, on or about July 22, 1999, against respondent board. The proceeding challenged two propositions approved by district voters at separate special meetings appropriating funds to South Country Library ("South Country") and Brookhaven Free Library ("Brookhaven"). Petitioner also challenged two library service contracts. In August 1999, petitioner amended her petition to add the two libraries as respondents.

By decision dated November 22, 1999, the Supreme Court concluded that it lacked jurisdiction to entertain petitioner"s claims because Education Law "2037 vests the Commissioner of Education with exclusive original jurisdiction over all disputes concerning the validity of any district meeting or election. The Supreme Court did not explicitly dismiss the proceeding, but instead, directed the court clerk to transfer the court papers to the Commissioner of Education.

By letter dated January 28, 2000, petitioner"s counsel requested that my Office of Counsel provide an address to forward the pleadings from the Supreme Court proceeding. By letter dated February 15, 2000, petitioner"s counsel was advised, among other things, that the procedures for commencing an appeal to the Commissioner of Education are found in Parts 275 and 276 of the Commissioner"s regulations. By letter dated February 17, 2000, petitioner"s counsel attempted to file copies of the Supreme Court pleadings with my Office of Counsel, asserting that the Supreme Court had "transferred" the matter to the State Education Department. By letter dated March 1, 2000, petitioner"s counsel was again advised that she would be required to follow the Commissioner"s administrative procedures to initiate an appeal before me. Petitioner ultimately served a petition on respondents on March 20, 2000. Although the petition contains some factual background and a prayer for relief, it does not contain a clear and concise statement of petitioner"s legal claims. Instead, petitioner simply "incorporated" by reference" the voluminous record from her Supreme Court challenge without further delineating her legal claims.

Both South Country and Brookhaven are free association libraries located within respondent board"s district. On March 22, 1999, district voters authorized a $1,794,000 library appropriation to South Country. On April 19, 1999, district voters approved a $373,210 appropriation to Brookhaven. Based on the passage of these two propositions, respondent board contracted with each library for library services. It appears that respondent board executed a contract with Brookhaven on April 24, 1999 and with South Country some time in May 1999. Both contracts indicate an effective date commencing July 1, 1999 and ending June 30, 2000.

In her Supreme Court papers, petitioner contends, among other things, that respondent board violated Education Law "259 by presenting district voters with two separate propositions for library appropriations. She asserts that this provision requires respondent board to present a single budget proposition for library services. Petitioner also challenges the legality of the library service contracts on various statutory and constitutional grounds. For relief, petitioner requests, among other things, that I set aside the budget votes and library service contracts. Respondents assert that petitioner"s claims lack merit and also allege that the petition is both untimely and moot, and that petitioner lacks standing because she is not a district resident.

I decline to address the merits of petitioner"s claims because I find that the appeal must be dismissed on procedural grounds. First, I find that the petition does not comply with "275.10 of the Commissioner"s regulations because it does not contain a clear and concise statement of petitioner"s claims showing that petitioner is entitled to relief. In the interest of avoiding duplication of effort, it may be appropriate under certain circumstances for a petitioner to incorporate the record from a previous court challenge. However, especially where, as in this case, the record from the prior proceeding is voluminous, it is incumbent upon the petitioner to specify the pleadings upon which she is relying. The record from petitioner"s Article 78 proceeding includes, among other things, an amended petition, notice of motion to dismiss the petition and affidavit in support thereof, an affirmation and affidavit in opposition to said motion, as well as a reply, sur-reply and supplemental affirmation. Both petitioner"s opposition to the motion to dismiss and her sur-reply, in addition to her petition, include substantive discussions of her claims. Under these circumstances, I find that petitioner has failed to present her claims clearly and concisely as required by "275.10 of the Commissioner"s regulations.

Moreover, I note that petitioner"s attempt to present her claims in her reply is improper. The purpose of a reply is to respond to procedural defenses or new material contained in an answer and is not meant to buttress allegations contained in the petition or add assertions that should have been part of the petition (8 NYCRR ""275.3 and 275.14; Appeal of Mennella, 39 Ed Dept Rep 306, Decision No. 14,245). Accordingly, I will not consider those portions of petitioner"s reply that constitute new allegations or evidence which is not responsive to new material or affirmative defenses set forth in respondents" answer.

The appeal must also be dismissed as untimely. An appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within 30 days from the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Tomassetti, 39 Ed Dept Rep 513, Decision No. 14,296). Petitioner challenges propositions approved by district voters on March 22, 1999 and April 19, 1999 and contracts for library services executed in April and May, 1999. Petitioner did not commence this appeal until March 2000, well beyond the 30-day period.

Further, I do not find that petitioner has established good cause for the delay. An unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner, when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding (Appeal of Kelly, 35 Ed Dept Rep 235, Decision No. 13,528; Appeal of Martin, 29 id. 148, Decision No. 12,248; Appeal of Schwarz, 28 id. 101, Decision No. 12,045). In this case, I find that petitioner did not commence this appeal within a reasonable time after her Supreme Court proceeding was effectively dismissed. Petitioner waited two months after the Supreme Court issued its order to first inquire about "transferring" the Supreme Court papers to my Office of Counsel. I note that no legal procedure exists which authorizes the Supreme Court to "transfer" an Article 78 proceeding to the Commissioner of Education. But, even if the court order initially left petitioner with the mistaken impression that the matter had been "transferred", petitioner"s counsel was advised by my Office of Counsel in a letter dated February 15, 2000 that he would need to comply with the procedures set forth in Parts 275 and 276 of the Commissioner"s regulations in order to commence an appeal with the Commissioner. Yet, petitioner failed to serve her petition until March 20, 2000, more than one month later. While I have afforded some latitude in procedural matters to petitioners who are not represented by counsel (see, Appeal of Miller, 39 Ed Dept Rep 348, Decision No. 14,256; Appeal of Mennella, supra), petitioner here had the benefit of counsel. I have repeatedly held that, absent unusual circumstances, ignorance of the appeals process does not establish good cause for delay (Appeal of Tomassetti, 39 Ed Dept Rep 513, Decision No. 14,296; Appeal of Amara S., 39 id. 90, Decision No. 14,182). Accordingly, I find no unusual circumstances present here to excuse petitioner"s delay.

Additionally, I note that petitioner failed to commence her Supreme Court proceeding until more than 30 days after the passage of the library funding propositions and execution of the library service contracts. Education Law "2037 vests the Commissioner of Education with exclusive original jurisdiction over all disputes concerning the validity of any district meeting or election (Matter of Schulz v. State, 86 NY2d 225). When a petitioner is represented by counsel, I do not find it appropriate to excuse unnecessary delay caused by petitioner"s choice of an improper forum. To hold otherwise would essentially permit the selection of an improper forum to indefinitely extend the statute of limitations beyond the 30-day period specified in the Commissioner"s regulations.

The appeal must also be dismissed as moot. The Commissioner of Education only decides matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Morenus, 39 Ed Dept Rep 33, Decision No. 14,165; Appeal of June D., 38 id. 596, Decision No. 14,101). Both library service contracts challenged by petitioner expired on June 30, 2000. In addition, respondent board indicates that district voters have subsequently voted on new appropriations for the libraries in question. Accordingly, the facts and circumstances which formed the basis for this appeal have changed, rendering the appeal moot.

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

THE APPEAL IS DISMISSED.

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