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Decision No. 13,251

Appeal of JAMES E. KANE from action of the Board of Trustees of the Liverpool Public Library regarding acquisition of property.

Decision No. 13,251

(September 1, 1994)

Helmetag, Miller & Grobosky, Esqs., attorneys for respondent

SOBOL, Commissioner.--Petitioner, a resident of the Liverpool Central School District, challenges the actions of respondent Board of Trustees of the Liverpool Public Library, a school district public library, in acquiring a tract of real property. The appeal must be dismissed.

On or about April 1989, respondent sought ways to address a perceived need to expand its facilities to meet increased public demand for library services. Respondent explored the option of creating one or more branch libraries. However, respondent elected to try to expand its current facility to save additional staff expenses that would occur if it established branch libraries.

On or about November 1992, acting through an agent for an undisclosed principal, respondent offered to purchase property (215 Second Street) immediately adjacent to its facility for a price of $200,000. The owner of 215 Second Street rejected that offer. In March 1994, petitioner offered to purchase the back portion of the property at 215 Second Street to expand the parking capacity of property in which petitioner has a partnership interest. That property is also located adjacent to 215 Second Street on the side opposite to the library. Petitioner's offer was not accepted. In April 1994, respondent entered into negotiation with the owner of 215 Second Street for the purchase of that property. On April 13, 1994, petitioner attended respondent's annual meeting. At that meeting, petitioner asked questions regarding how respondent intended to use its capital reserve fund. Because respondent was currently involved in ongoing negotiations involving the purchase of real property in which petitioner had recently expressed an interest, respondent's president answered general questions posed by petitioner. Respondent's president did not address specific questions which might hinder or affect the negotiations for 215 Second Street.

On April 18, 1994, respondent entered into an agreement with the owner of 215 Second Street to purchase that property for $212,000. The transfer was completed on May 4, 1994. Petitioner commenced this appeal on May 6, 1994.

Petitioner requests an order preventing respondent from completing the transaction to purchase 215 Second Street. In view of the fact that the transaction was completed before petitioner commenced this appeal, such relief cannot be granted.

Petitioner also requests that I formally reprimand respondent for its alleged "irresponsible fiscal action and breach of ... fiduciary responsibility." Specifically, petitioner contends that respondent paid an excessive price for the property. Respondent denies that contention.

Pursuant to Education Law '306, the Commissioner of Education is authorized to remove a board member from office. However, no provision of the Education Law authorizes the reprimand of a board member by the Commissioner of Education (Appeal of Silano, 33 Ed Dept Rep 30; Matter of Legatos, 23 id. 10; Matter of Graham, 11 id. 220).

Moreover, in an appeal to the Commissioner of Education, the petitioner bears the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Norkin, 33 Ed Dept Rep 643; Appeal of Spain, 34 id. 616; Appeal of Singh, 30 id. 284). Petitioner offers no proof to substantiate his claim that the price paid by respondent for 215 Second Street was excessive. Petitioner contends that the property in question was purchased for a specific price in 1987. However, petitioner offers no proof to support his contention as to the purchase price of the property in 1987. Furthermore, petitioner's assertion as to the property's 1987 value is contested by respondent. In addition, nothing in the record indicates whether the property has been improved since 1987. The record does indicate that the adjacent property, in which petitioner has an interest, was recently appraised at a value of approximately $500,000. Based on the foregoing, there is no basis to conclude that respondent has acted improperly in the purchase of 215 Second Street.

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