Skip to main content

Decision No. 13,086

Appeal of JAMES ALMEDINA from action of the Board of Education of the Central Islip Union Free School District relating to expenditures on a contingency budget.

Decision No. 13,086

(December 31, 1993)

Pelletreau & Pelletreau, Esqs., attorneys for respondent, Kevin A. Seaman, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a resident of the Central Islip School District, challenges the adoption of a contingency budget for the 1991-92 school year. The appeal must be dismissed.

In June 1991, the voters of the district rejected a proposed school budget in the amount of $52,072,272. Subsequently, respondent board of education adopted a contingency budget pursuant to Education Law '2023. The contingency budget exceeded the original proposed budget by $2,191,967. Petitioner seeks a reprimand of respondent board and a return of funds to the taxpayers that were levied in excess of the 1991-92 proposed school budget.

Petitioner maintains that the adoption of a contingency budget in an amount in excess of the originally rejected budget somehow violates the due process clause of the Federal Constitution. Respondent counters that the appeal must be dismissed as untimely. Respondent also asserts that it did not act improperly in adopting a contingency budget for the 1991-92 school year.

With respect to timeliness, '275.16 of the Regulations of the Commissioner of Education requires that an appeal be instituted within 30 days after the making of the decision or performance of the act complained of provided that the Commissioner may excuse a delay in commencing an appeal for good cause (Application of Cox, 27 Ed Dept Rep 124; Appeal of Colas, 32 id. 128). The reasons for the delay must be set forth in the petition. Id. Petitioner initially attempted to commence this appeal on January 25, 1993. The petition was rejected by my Office of Counsel for improper notice and format. It was subsequently corrected, and a new petition was served on respondent on February 2, 1993. Since the corrected petition was served and filed within two weeks of the notification of the defects by the Office of Counsel, the date of service related back to the original service, i.e., January 25, 1993. Nevertheless, the appeal was commenced 18 months late, since it complains of a contingency budget adopted by the district in July 1991.

Petitioner claims that this delay should be excused because he was not aware of the appeal process. However, the Commissioner has consistently ruled that unfamiliarity with the appeal process is not an adequate excuse for the untimely commencement of an appeal (Appeal of Najuch, 31 Ed Dept Rep 9; Application of Shaw, 30 id. 152). Accordingly, I find that petitioner's appeal relating to the 1991-92 school year is untimely and must be dismissed.

The appeal must also be dismissed on the merits. In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Singh, 30 Ed Dept Rep 284; Appeal of Amoia, 28 id. 150). Petitioner offers no legal basis to support his assertion that respondent has acted improperly, other than a vague reference to the due process clause of the Federal Constitution. I find that argument unsupported and unpersuasive. In any event, an appeal to the Commissioner of Education is not the proper forum for litigating novel issues of constitutional law (Appeal of DePasquale, 30 Ed Dept 361; Appeal of DePold, 26 id. 460; Matter of Sepinski, 25 id. 183).