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Decision No. 12,949

Appeal of FREDERIC M. GANG from action of the Board of Education of the Syosset Central School District relating to use of funds for construction.

Decision No. 12,949

(June 22, 1993)

Jaspan, Ginsberg, Ehrlich, Schlesinger, Silverman & Hoffman, Esqs., attorneys for respondent, Jerome H. Ehrlich, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a resident of the Syosset Central School District, requests an order rescinding the board of education's award of contracts to various entities to construct multi-purpose rooms at three local schools. The appeal must be dismissed.

On September 16, 1991, the Board of Education of the Syosset Central School District awarded a series of contracts for general work, in addition to plumbing, electrical, and heating work, to a number of firms which had submitted bids in compliance with respondent's specifications. The contracts involved the construction of "all-purpose" rooms at the Berry Hill, Village, and Willits Elementary Schools. Petitioner commenced this appeal on or about October 15, 1991 by serving papers on the school district clerk.

Petitioner contends that Education Law '1709(6) requires voter approval for these construction projects. He claims that since early 1989, however, respondent has attempted and failed to gain voter approval for these projects. Petitioner relies upon the defeat of propositions for the construction of additions to elementary schools on March 8, 1989, and the rejection of a proposition on May 10, 1989 relating to an addition to the Village Elementary School. Petitioner further contends that respondent did not provide enough information to make voters aware that by approving budgets in 1989 and 1990, they were also assenting to the construction of additions to the elementary schools. Petitioner claims that respondent's actions have usurped the people's right to make informed decisions on specific construction projects.

Respondent counters that the voters have approved the expenditure of funds for the construction at issue. Respondent alleges that it submitted a budget to the voters on June 21, 1989 which contained an appropriation for the Berry Hill multi-purpose room. Respondent also alleges that in advance of the vote, a budget brochure was published and distributed to district residents informing them that the budget contained appropriations for capital projects --- including the Berry Hill multi-purpose room. Respondent has submitted a copy of that brochure for the record. Respondent contends that the June 21, 1989 budgetproposal was approved by the voters at that meeting. Subsequent to the approval, the funds were segregated by interfund transfer to a capital projects fund and were carried forward into the 1991-92 school year. With respect to the projects at the Willits and Village Elementary Schools, respondent alleges that the proposed budget for the 1990-91 school year contained appropriations for capital projects, including these multi-purpose rooms. Respondent alleges that the brochure describing the budget specifically stated that the proposed budget contained appropriations for several capital projects, including the Willits and Village Elementary Schools multi-purpose room. Respondent alleges that on May 9, 1990 the budget containing these multi-purpose room appropriations was approved by the voters. These projects did not get underway during that year, however, and respondent alleges that the funds were segregated by interfund transfer and carried forward into the 1991-92 school year. Respondent therefore contends that the voters approved each of these construction projects. Respondent further claims that petitioner's failure to join the various contractors to whom the contracts were awarded requires dismissal of the appeal, since a determination favorable to petitioner would affect the rights of these contractors to receive payments under the contracts which they were awarded.

While it is clear that '1709(6) requires voter approval for the construction of school buildings, petitioner is incorrect in assuming that that approval must come in the form of a separate proposition on a ballot placed before the voters. Based upon the record before me, it is apparent that in approving the budgets in 1989 and 1990, district voters did vote to appropriate monies to construct these multi-purpose rooms. The fact relied upon by petitioner, i.e. that separate propositions for these same rooms had been defeated in previous votes, does not nullify the final voter approval given in the budget process. Therefore, I find that petitioner has failed to demonstrate that respondent's actions violated the law.

Additionally, I find that petitioner's failure to join the various contractors who received the award of the bids in September 1991 requires dismissal of this appeal (Matter of Jacobson 28 Ed Dept Rep 167). Therefore, for both of these reasons, the appeal must be dismissed.