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Decision No. 12,898

Appeal of JOHN CHARLES BACH from action of the Board of Education of the Saugerties Central School District regarding a bond vote.

Decision No. 12,898

(March 29, 1993)

Whiteman, Osterman & Hanna, Esqs., attorneys for respondent, Gunter Dully, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges respondent's expenditures for the development and dissemination of information prior to a bond vote held on December 11, 1991. The appeal must be dismissed.

On December 11, 1991, respondent board of education met to consider whether to issue $9.987 million in bonds to fund the renovation and expansion of the Cahill Elementary School. The bond issue was approved by the voters 1,424 to 1,309. The proposed reconstruction project included the abatement of asbestos hazards, furnishings, machinery, equipment apparatus and other incidental improvements. Prior to the vote, respondent held informational community meetings to discuss the proposed bond issue and reconstruction project. Excerpts of the meetings were videotaped at respondent's expense, and presented on the local cable access channel. The legal notice of the special district meeting announced that the board was proposing a maximum estimated cost of $9.987 million to be raised by a levy on the taxable property of the school district. Respondent adopted a bond resolution authorizing the issuance of $9.987 million serial bonds to finance the costs of the reconstruction project on February 10, 1992.

The bond authorization encompassed six projects which were approved by the State Education Department. The asbestos abatement project has been completed and work has been commenced on the other projects as well. As of July 21, 1992, respondent had incurred expenses totalling $970,652.40. This appeal was commenced on December 1, 1992.

Petitioner asserts that respondent engaged in wilful misconduct by misusing public funds to pay for the production of the videotape. The video was used, it is alleged, to intentionally mislead the voters to believe that the taxpayer's obligation would be only $4.7 million, rather than the $9.987 million actually sought. He contends that the video was not intended to be informative, but was designed to urge voter approval of the bond issue. Petitioner seeks to have me hold respondent accountable for its actions.

Respondent asserts that the appeal is untimely since it was filed more than 30 days after the bond issue was passed. Additionally, respondent argues that to the extent petitioner alleges the video contained false and misleading information, such allegations are barred by the doctrine of res judicata, since petitioner previously raised essentially the same claim in an earlier appeal.

An appeal must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Greenspan, 29 Ed Dept Rep 397). The bond vote occurred on December 11, 1991. The board resolution authorizing the issuance of bonds was passed on February 10, 1992. On September 23, 1992, petitioner received a copy of the invoice indicating that respondent had paid for the video. Nonetheless, this appeal was not initiated until December 1, 1992, more than two months after the receipt of the invoice and nearly one year after the vote. Petitioner offers no explanation for the delay. Therefore, the appeal must be dismissed as untimely.

Petitioner contends in this appeal that the video contains false and misleading information designed to exhort the electorate to vote for the bond issue. This issue was the subject of a prior appeal in which petitioner sought to set aside the results of the bond vote on the same basis (Appeal of Bach, 32 Ed Dept Rep 273). That appeal was dismissed on the merits (Appeal of Bach, supra).

Having litigated the same claim and having received an adverse determination on whether respondent abused its discretion, petitioner is barred by the doctrine of res judicata from relitigating the issue (Appeal of Tobin, 30 Ed Dept Rep 315; Appeal of Roth, 26 id. 165; Matter of Monaco, 24 id. 348). Even though petitioner now appears to base his claim in part, on a new legal theory involving the misuse of funds, the appeal must, nonetheless, be dismissed because it arises out of the same set of facts (Appeal of Tobin, supra; O'Brien v. City of Syracuse, 54 NY2d 353).