Decision No. 14,838
Appeal of DOUG COLETY, et al., from action of the Board of Trustees of the New Rochelle Public Library regarding the library budget.
(February 25, 2003)
Shaw & Perelson, LLP, attorneys for respondent, Marc E. Sharff, Esq., of counsel
MILLS, Commissioner.--Petitioners challenge the August 12, 2002 resolution of the Board of Trustees of the New Rochelle Public Library ("respondent"), which authorized its president to demand that the Board of Education of the City School District of the City of New Rochelle ("school board") issue a tax warrant to fund the library. The appeal must be dismissed.
The facts surrounding respondent"s adoption of the August 12, 2002 resolution are set forth in Appeal of the Board of Trustees of the New Rochelle Public Library, 42 Ed Dept Rep __, Decision No. 14,827. In that appeal I determined that the school district lacked authority to issue a tax warrant intended to fund the library without prior voter approval of the proposed library budget. Accordingly, I declined to order the school board to levy a tax for library purposes.
In this appeal, petitioners contend that respondent"s actions violated Education Law "259 and ask that I invalidate the resolution and prohibit the school board from carrying out the tax levy. Respondent maintains that the appeal should be dismissed as untimely and for failure to join the school board as a necessary party. Respondent further argues that granting petitioners" request will, in effect, abolish the library without voter authorization in violation of the Education Law.
A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Patton, et al., 42 Ed Dept Rep __, Decision No. 14,832; Appeal of Roff, 41 id. __, Decision No. 14,708; Appeal of MacKay, 39 id. 815, Decision No. 14,391). Petitioners have requested that I prohibit the school board from taking any action to administer or enforce the resolution, but have failed to join the school board. Therefore, the appeal must be dismissed for failure to join the school board as a necessary party.
Petitioners" appeal also is untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of unless any delay is excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent passed the resolution on August 12, 2002 and petitioners commenced this appeal on September 18, 2002, more than 30 days later. Petitioners have not offered any explanation for their lateness. Thus, the appeal must be dismissed as untimely.
Although this appeal must be dismissed on procedural grounds, I reiterate that under the facts of this case, the school board lacks the authority to levy a library tax without prior voter approval (see, Appeal of the Board of Trustees of the New Rochelle Public Library, supra).
In light of this disposition, I need not address the parties" remaining contentions.
THE APPEAL IS DISMISSED.
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