Decision No. 13,088

(January 6, 1994)

Pelletreau & Pelletreau, Esqs., attorneys for respondent, John J. Hart and Thomas M. Volz,

Esqs., of counsel

SHELDON, Acting Commissioner.--Petitioner challenges the adoption of a contingency budget by respondent Board of Education of the Patchogue-Medford Union Free School District ("respondent"). He also challenges respondent's rejection of a budget proposition submitted by a group of district residents. The appeal must be dismissed.

Petitioner is a resident of respondent's district. On May 5, 1993, the voters rejected respondent's budget by a vote of 4,347 to 1,684. After the budget was defeated, respondent scheduled public meetings on May 10, 17 and 24, 1993 to discuss budget alternatives. Another meeting scheduled for June 7th was canceled. On June 7, 1993, a petition was filed with respondent which called for a special meeting and a vote on an alternative budget proposed by a citizens group, Concerned Citizens of Patchogue-Medford (CToP). At a meeting held on June 21, 1993, respondent rejected the petition and voted to institute a contingency budget.

CToP commenced a proceeding in connection with this matter by order to show cause in Supreme Court, Nassau County, on June 22, 1993. In an order dated June 30, 1993, Justice James McGowan dismissed that proceeding on the basis that the question raised was properly within the jurisdiction of the Commissioner of Education and that CToP had not exhausted all administrative remedies. This appeal ensued. Petitioner's request for an interim order pending a final determination on the merits of the appeal was denied on August 10, 1993.

Petitioner contends that respondent failed to consider the voter proposition before adopting the contingency budget. He seeks an order declaring null and void respondent's contingency budget. Petitioner also seeks an order requiring respondent to schedule a special election to vote on the alternative budget submitted to respondent. Respondent contends that it acted properly in adopting a contingency budget and rejecting the submitted budget proposition.

Before reaching the merits, I must first address a procedural issue. Petitioner seeks to bring this appeal on his own behalf and on behalf of all children, parents and taxpayers in respondent's district. A class appeal is permitted "only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class" (8 NYCRR 275.2[a]). Where petitioner fails to set forth the number of individuals he seeks to represent, class status will not be permitted (Appeal of Reid, 32 Ed Dept Rep 587; Appeal of Rosenberg, 32 id. 165; Appeal of the National Association of the Advancement of Colored People (NAACP) Schenectady Branch, et al., 30 id. 187). In this case, petitioner names several groups he purports to represent but fails to set forth the number of individuals in the proposed class or show that members of the class are so numerous that joinder is impracticable. Class status is, therefore, denied.

The appeal must also be dismissed on the merits. Pursuant to Education Law '1716, authority to develop a budget for a school district rests with the board of education. The budget proposition which is the subject of this appeal appropriates insufficient funds and would result in respondent having to reduce or eliminate certain academic programs. The voters of the district, however, have no legal authority to require the reduction of a budget item approved by the board (Appeal of Brown, 32 Ed Dept Rep 212; Matter of Gang, et al., 23 id. 118). Respondent, therefore, properly rejected the proposition in question. Moreover, once the original budget was rejected by the voters, respondent is specifically authorized by Education Law '2023 to adopt a contingency budget (Brown v Board of Educ., 88 AD2d 184; Matter of Fagan, 15 Ed Dept Rep 296).

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

THE APPEAL IS DISMISSED.

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