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Decision No. 13,072

Appeal of PEARL GRIFFITHS from action of the Board of Education of the Lakeland Central School District relating to construction of a transportation building.

Decision No. 13,072

(December 22, 1993)

Steyer & Sirota, Esqs., attorneys for respondent, Murray Steyer, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a resident of the Lakeland Central School District, requests an order rescinding the board of education's decision to construct a transportation building. The appeal must be dismissed.

On May 23, 1989, the voters of the Lakeland district approved a proposition authorizing respondent to reconstruct and equip "various buildings at an estimated cost of $1,830,000." Pursuant to that referendum, respondent adopted a bond resolution. Included in the bond resolution was the construction of a transportation building. On or about March 23, 1993, respondent entered into several contracts totalling $258,318 for the construction of the transportation building. On August 5, 1993 petitioner commenced this appeal seeking an order staying further action on the construction of the transportation building. Petitioner's request for a stay was denied.

Petitioner contends that pursuant to the proposition approved by the voters in 1989, respondent is only authorized to spend $49,900 in connection with the construction of the transportation building and the board may not enter into contracts totaling $258,318 for such construction. Respondent contends that it has the requisite authority to expend $258,318 for the transportation building.

Before reviewing the merits of the appeal, it is necessary to address two procedural issues. First, the appeal must be dismissed as untimely. An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). Petitioner contests respondent's decision to expend more than $49,900 for the construction of the transportation building. That decision was made prior to March 1993 since contracts were signed and construction began on or about March 23, 1993. In light of the fact that petitioner waited approximately three and one-half months before commencing this appeal and she offers no reason in her petition for the delay, the appeal must be dismissed as untimely.

The appeal must also be dismissed for failure to join necessary parties. An entity whose rights would be adversely affected by a determination of an appeal to the Commissioner must be joined as a necessary party (Appeal of Keiling, 25 Ed Dept Rep 122; Matter of Monaco, 24 id. 348; Matter of Eaton, 23 id. 284). Petitioner requests that construction of the transportation building be stopped. If that relief was granted, it would impair the contracts between respondent and four separate contractors. Accordingly, the four contractors should have been joined as parties in this appeal and failure to do so requires dismissal of the petition.

The appeal must also be dismissed on the merits. Petitioner contends that respondent was only authorized to spend $49,900 in connection with the transportation building, and its expenditure of funds in excess of that amount violated Local Finance Law '165.00. In support of that contention, petitioner submits a copy of a memo for a March 16, 1989 meeting of respondent board which lists various proposed construction projects, including the purchase at a cost of $49,900 of a temporary trailer to house a transportation office. However, the sum of $49,900 for a trailer was merely a proposal in an initial report to the board. That initial proposal was rejected by the board. The record reflects that the proposition as adopted authorizes respondent to spend $1,830,000 for several buildings, including the construction of a permanent transportation building. The proposition did not specify individual costs for the various buildings intended to be covered by the proposition. The record further indicates that funding for the transportation building came from the balance of the authorized $1,830,000, after completion of the other construction projects authorized by the voters. There is no evidence that respondent's total expenditures for all the authorized projects exceeded $1,830,000. Accordingly, there is no basis to conclude that respondent acted improperly in this matter.

I have reviewed petitioner's other contentions and find them without merit.