Decision No. 13,102

(February 17, 1994)

Bacharach, Green & Bass, P.C., attorneys for respondent, Arnold B. Green and Giacchino J. Russo, Esqs., of counsel

SOBOL, Commissioner.--Petitioner challenges the adoption of a contingency budget by the Board of Education of the Greenburgh Central School District No. 7 ("respondent"). The appeal must be dismissed.

Petitioner is a resident of respondent's district. On May 12, 1993, the voters rejected respondent's budget by a vote of 965 to 842. On the same date, the voters approved a bond issue for capital projects to repair buildings at a cost of $4,541,264.00. On May 24, 1993, respondent voted to adopt a contingency budget. On June 16, 1993, respondent submitted a proposition to the voters covering items not subject to funding under a contingency budget. The proposition included transportation below State mandated mileage limits, athletics, co-curricular activities, furniture, new equipment and a modular classroom multi-year lease. The voters defeated the proposition on July 15, 1993. This appeal ensued.

Although not entirely clear from the petition, petitioner appears to allege that respondent failed to provide the voters with proper notice of the budget propositions, that respondent failed to include all revenues in its contingency budget and that the contingency budget was not properly adopted. Petitioner also alleges that respondent has failed to provide documents to her concerning student enrollments.

Respondent contends that the petition is untimely and should be dismissed for failure to state a claim upon which relief may be granted. Respondent also contends that it properly adopted a contingency budget and submitted subsequent budget propositions.

Before reaching the merits, I will address the procedural issues. 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; Appeal of Johnson, 33 Ed Dept Rep 183; Appeal of Sima-Eichler, 31 id. 550). Petitioner takes issue with respondent's actions concerning the contingency budget and subsequent budget propositions which were submitted to the public for a vote at various public meetings, the last of which was on July 15, 1993. Petitioner's appeal was not served on respondent until September 7, 1993, more that thirty days from the date of respondent's last action. Petitioner offers no excuse for the delay. The appeal must, therefore, be dismissed as untimely.

The appeal must also be dismissed for failure to state a claim upon which relief may be granted. A petition must contain "a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled" (8 NYCRR 275.10; Appeal of Mitzner, 32 Ed Dept Rep 536; Appeal of Mitzner; 32 id. 403; Appeal of Fassler, 31 id. 15). The petition contains rambling allegations that fail to state any comprehensible claim. As a practical matter, respondent is unable to defend itself against such unfocused allegations. It is also impossible to discern from the petition the specific remedy sought by petitioner since she states only that she has filed the appeal for "conclusive decisions" regarding respondent's contingency budget.

The appeal must also be dismissed on the merits. Education Law '2023 specifically authorizes the board of education to adopt a contingency budget once the original budget is rejected by the voters (Brown v. Board of Education, 88 AD2d 184 [3d Dept. 1981]; Appeal of Sperl, 33 Ed Dept Rep ___, Decision No. 13088, dated January 6, 1994; Matter of Fagan, 15 id. 296). My review of the record indicates that respondent acted properly in adopting a contingency budget and in submitting subsequent budget propositions to the voters to authorize expenditures on items not authorized under a contingency budget.

Petitioner also appears to allege that respondent has failed to produce documents that she has requested concerning student enrollments. To the extent that petitioner alleges Freedom of Information Law (FOIL) violations, the appropriate forum for resolving these claims is the Supreme Court of the State of New York (Appeal of Mitzner, 32 Ed Dept Rep 101).

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

THE APPEAL IS DISMISSED.

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