Appeal of LARRY R. BONHAM from action of the Board of Education of the Voorheesville Central School District regarding the sale of plaques for installation on school district property.

 

Decision No. 15,140

 

(November 24, 2004)

 

Whiteman Osterman & Hanna, LLP, attorneys for respondent, Robert T. Schofield, Esq. of counsel

 

Petitioner appeals the decision of the Board of Education of the Voorheesville Central School District (�respondent�) to permit the Voorheesville Friends of Music (�FOM�) to raise funds by selling dedication plaques for the district�s high school auditorium.  The appeal must be dismissed.

FOM is a non-profit organization formed to support respondent�s music education program.  On June 11, 2001, respondent approved several of FOM�s fundraising plans, including membership drives, community concerts and the �Best Seat in the House Campaign� (�campaign�).  The money raised is used to purchase specialized equipment for the district, award scholarships and underwrite special musical presentations.  Expenditures of money raised by FOM is subject to board approval. 

The campaign raised money by selling, for $30-$50, a seat dedication in the district�s new high school auditorium.  A small (approximately one inch by three inch) plaque, engraved with text was affixed to each seat.  In the case of corporate donors, one line of text identifying the corporation was permitted.  Private individuals could select one of several dedication lines (i.e., �In Memory of�) and a second line with the donor or honoree�s name.  Donors were not able to pick specific seats, and no right to the seat was conveyed.  FOM donated the money raised from this campaign, nearly $6,000, to respondent, and it was used as partial payment to purchase a concert grand piano for the auditorium.  

Petitioner contends that this fundraising activity violates Article VIII, �1 of the New York State Constitution by allowing an outside organization to profit from the sale of the plaques.  Petitioner asserts that respondent had no authority to permit ownership of district property by an outside organization.  Petitioner asks that the plaques be removed, that no further plaques be allowed and that I �cite� respondent and its superintendent for their actions in this matter.

Petitioner also argues that respondent�s answer was served late and should not be considered.  Section 275.13 of the Commissioner�s Regulations requires a respondent to answer a petition within 20 days from the time of service.  Since the petition was served on November 19, 2003, respondent was required to serve its answer by December 9, 2003.  Respondent, however, did not serve its answer until December 10, 2003, and offered no excuse for the delay. Accordingly, I find no basis to accept the late answer, and the factual allegations set forth in the petition are deemed to be true statements (8 NYCRR �275.11).

Additionally, petitioner submitted a reply that contains new allegations that should have been raised in the petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ��275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Goldin, 43 Ed Dept Rep ___, Decision No. 14,904; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Since no answer has been accepted, there is no reason to consider petitioner�s reply.

Turning to the merits, in an appeal to the Commissioner, petitioner bears the burden of establishing all of the facts upon which he or she seeks relief (8 NYCRR �275.10; Appeal of Apgar, 43 Ed Dept Rep __, Decision No. 15,015; Appeal of Taylor, 39 id. 368, Decision No. 14,261).

Article VIII, �1 of the New York State Constitution provides in pertinent part, "No...school district shall give or loan any money or property to or in aid of any individual, or private corporation or association, or private undertaking...."  This section generally prohibits the expenditure of school district moneys for the benefit of private parties unless it is in furtherance of a proper public purpose and is undertaken pursuant to a statutory obligation or properly authorized contract under which the municipality receives fair and adequate consideration (see, Antonopoulou v. Beame, 32 NY2d 126; 1989 Opn. State Compt. No. 89-50).  However, where the expenditure primarily furthers a proper public purpose and only incidentally benefits an individual, the incidental private benefit will not invalidate the action (Waldo�s v. Village of Johnson City, 74 NY2d 718; Murphy v. Erie County, 28 id. 80; Opn. State Compt. No. 92-5).

Petitioner has not established that FOM profited from the campaign or that affixing a small dedication plaque to a seat constitutes ownership of public property either by FOM or the donor.  In fact, the campaign information flier specifically states that the campaign conveyed no rights or obligations to the donors of the seats.  Here, any incidental benefit to donors or FOM was offset by the benefit respondent received in the form of a substantial cash gift applied toward the purchase of a piano for the school community.

Education Law ��1709(12) and 1804(1) authorize a central school district to accept gifts.  In this case, the seat dedications were basically in the nature of gifts, notwithstanding the fact that donors were recognized with plaques (see, 33 Opn. State Compt. No. 77-229).  In addition, the New York State Comptroller has opined that a county governing board could accept a corporate grant to provide day care services which was conditioned upon naming a day care room in a county building after the grantor or installing a plaque of nominal value identifying the grantor, so long as the condition was subject to the board�s power to rename the room in its discretion in the future (Opn. State Compt. No. 90-6).  Nothing in the record before me establishes that respondent has ceded its authority over the seats and its ability to remove the plaques in its discretion.  Therefore, I cannot conclude that respondent has violated Article VIII, �1 of the State Constitution.

 

THE APPEAL IS DISMISSED.