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Decision No. 15,362

Appeal of WILLIAM H. GOLDEN from action of the Board of Education of the Oxford Academy and Central School District regarding the retention of surplus funds.

Decision No. 15,362

(February 9,2006)

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondent, John P. Lynch, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals actions of the Board of Education of the Oxford Academy and Central School District ("respondent") in regard to unexpended, unreserved surplus funds from the 2003-2004 school year. The appeal must be dismissed.

Respondent's district's balance sheet for the 2003-2004 school year reflected an undesignated fund balance of $918,888. When petitioner requested a copy of the tax warrant, respondent's business manager indicated that he was not able to locate it. This appeal ensued.

Petitioner argues that districts must comply with Real Property Tax Law ("RPTL") �1318, which requires the tax warrant to state the amount of unexpended surplus funds and that such funds have been applied in determining the school tax levy. Petitioner requests that I order respondent to comply with RPTL �1318 and order that any board member who allows the retention of surplus funds in the future be removed from their position on the board.

Respondent claims that petitioner has failed to state a claim upon which relief can be granted because he has provided no information for the 2004-2005 school year budget. Respondent also alleges that the petition is untimely as it was commenced on June 30, 2005, a year after the close of the 2003-2004 school year. Finally, respondent contends that to the extent petitioner requests the removal of future board members, they are unknown at this time and beyond the jurisdiction of the Commissioner.

An appeal under RPTL �1318(1) is timely if it is brought within the fiscal year during which unexpended surplus funds are allegedly improperly retained (Appeal of Uy and Norden, 44 Ed Dept Rep 368, Decision No. 15,201; Appeal of Gorman, 43 id. 32, Decision No. 14,906; Appeal of Schadtle, Jr., 40 id. 60, Decision No. 14,421).  This appeal was commenced on June 30, 2005, during the 2004-2005 school year, and therefore is timely with respect to allegations that respondent improperly retained surplus funds during that school year.

The Commissioner will not render an advisory opinion on an issue before it becomes justiciable ( Appeal of Lombardo, 44 Ed Dept Rep 167, Decision No. 15,135; Appeal of American Quality Beverages, LLC, et al., 42 id. 153, Decision No. 14,805; Appeal of Sheppard, 41 id. 150, Decision No. 14,643). Accordingly, I decline to address petitioner's request for the removal of board members who in the future fail to comply with RPTL �1318.

Under RPTL �1318(1), at the conclusion of each fiscal year, a board of education must apply any unexpended surplus funds to reduce its tax levy for the upcoming school year. Surplus funds are defined as "any operating funds in excess of two percent of the current school year budget, and shall not include funds properly retained under other sections of law" (RPTL �1318[1]). Accordingly, at the end of each school year, all unexpended operating funds in excess of 2% of the amount of the budget for the upcoming school year must be applied to reduce the tax levy (Appeal of Uy and Norden, 44 Ed Dept Rep 368, Decision No. 15,201; Appeal of Gorman, 43 id. 32, Decision No. 14,906; Appeal of Schadtle, Jr., 40 id. 60, Decision No. 14,421).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). In this case petitioner has failed to establish that any surplus funds were improperly retained or that the tax warrant failed to comply with RPTL �1318. Absent further documentation, including the tax warrant which the district failed to produce, I cannot make a determination as to how the apparent excess was allocated.

Although the appeal is dismissed, I remind respondent of the need to comply fully with the requirements of RPTL �1318.

THE APPEAL IS DISMISSED.

END OF FILE