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Decision No. 14,032

Appeal of DAVID SHUFELT from action of the Board of Education of the Webutuck Central School District regarding alleged misconduct.

Decision No. 14,032

(November 23, 1998)

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Webutuck Central School District ("respondent") relating to various expenditures by the district. The appeal must be dismissed.

Petitioner contends that respondent authorized payments to district employees without formal resolution or public vote. Specifically, petitioner contests payments made to the former Superintendent, Brenda Luck; school district employees, Stephen O’Connell and Paul Fried; and the district business manager, Fran Rappocio. Petitioner contends that respondent’s failure to pass formal resolutions authorizing these payments constitutes a waste of taxpayer funds.

Petitioner also objects to certain capital expenditures. Although the petition is unclear, petitioner appears to contend that respondent failed to obtain voter approval for the relocation of the district’s business office and Superintendent's office. Additionally, petitioner contends that respondent overdrew the repair budget line for this project by $240,000 without a proper resolution.

Petitioner further asserts that respondent distributed misleading and nonobjective information prior to three district-wide votes concerning transportation purchases. The allegedly improper distributions preceded the elections held on March 30, 1995, June 26, 1996, and March 31, 1997.

Petitioner also objects to the establishment of an educational allowance for the superintendent. Although it's not entirely clear, petitioner appears to contend that respondent should not have reimbursed the superintendent for educational expenses incurred in working toward her doctorate, because she had stated in her 1993 application for employment that she anticipated receiving her doctorate in 1993.

Finally, petitioner maintains that respondent misrepresented information to the public in an informational budget document distributed in May 1994.

In its answer, respondent denies that it made any improper payments to employees. Respondent maintains that all payments were made pursuant to contracts, which had been approved by the board of education, or pursuant to applicable collective bargaining agreements. Thus, respondent maintains that it did not waste taxpayer funds.

Respondent further contends that the voters approved the contested capital project expenditures on February 23, 1994. Specifically, respondent states that this vote included an estimated amount of $12,000 for restoring rooms at the Junior/Senior High School which necessitated the relocation of some district offices, including the superintendent’s. Moreover, respondent maintains that the total project cost did not exceed the amount authorized by the voters. As to the allegation that respondent overdrew the capital construction budget by $240,000, respondent alleges that petitioner misinterpreted its budget report regarding general funds expenditures, none of which were used to pay for the capital project costs.

In response to petitioner's allegations concerning the distribution of campaign literature, respondent maintains that the literature was factually correct and objective, and that such distributions were permissible. Respondent further denies that it misrepresented any information in its May 1994 informational budget document.

In response to petitioner’s allegation concerning the education allowance for the superintendent, respondent asserts that it was empowered to hire the superintendent without a doctorate. Furthermore, respondent asserts that the educational allowance included in the superintendent’s contract is a benefit provided to all administrators in the district.

Respondent also asserts a number of affirmative defenses. Specifically, respondent maintains that the petition should be dismissed as untimely and moot. In addition, respondent contends that the appeal should be dismissed for lack of proof or demand for specific relief.

This appeal must be dismissed as untimely. An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). All of the decisions or acts complained of in this appeal occurred more than 30 days before this appeal was commenced on May 5, 1997.

The alleged improper payments to Brenda Luck, Stephen O'Connell, Paul Fried and Fran Rappocio occurred in 1994, 1995, and 1996, well beyond the 30-day time limit. In addition, although petitioner claims that he was unaware of these expenditures, the record shows that he made freedom of information requests concerning the payments to Brenda Luck, Stephen O'Connell and Fran Rappoccio in 1994, 1995 and 1996. Thus, his objections to these payments are clearly untimely. With regard to his claims concerning payments to Paul Fried, petitioner offers no reasonable excuse for his delay. Accordingly, petitioner's allegations concerning improper payments and waste of taxpayer’s money are dismissed as untimely.

Petitioner’s allegations concerning the capital project approved by the voters on February 23, 1994 are also untimely. The actions of respondent in implementing this project occurred during the 1994-95 school year. Thus, these allegations must be dismissed. In addition, all of petitioner's allegations concerning campaign literature must be dismissed as untimely. Respondent distributed information concerning the transportation votes during the 1994-95, 1995-96 and 1996-97 school years. The last vote in this series of complaints occurred on March 31, 1997. This appeal was not commenced until May 5, 1997, more than 30 days from the last vote. Furthermore, petitioner's allegations concerning the budget document from May 1994 must be dismissed as untimely, since this petition was not filed until three years later.

Finally, petitioner’s contention that the superintendent’s work on her doctorate from 1993 through 1996 should not have been reimbursed by respondent also is not timely. The work was completed in 1996 and the decision to reimburse her for that work was made on June 28, 1996, which was ten months before this appeal was filed.

Petitioner asserts that his delay should be excused because he belatedly learned of the appeal process. However, I have repeatedly held that the time to begin an appeal will not be extended due to ignorance of the appeal process (see, Appeal of Goldberg, 29 Ed Dept Rep 476; Appeal of Cook, 26 id. 132; and Appeal of Aliberti, 26 id. 209).

Even if this appeal were not dismissed as untimely, it would be dismissed on the merits. In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR "275.10; Appeal of Samuels, 36 Ed Dept Rep 85; Appeal of Nash, 35 id. 203) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Samuels, supra; Appeal of Nash, supra).

In this case petitioner has presented no evidence that the payments made to former Superintendent Luck and district employees O’Connell, Fried and Rapppocio were improper. All of the payments complained of appear to have been made pursuant to contractual or collective bargaining agreements. In Mr. Fried’s case, it does appear that he was paid incorrectly by BOCES, rather than by the district (which is reimbursed by BOCES), for serving as the acting principal of the Dover-Webutuck Summer School. However, when this was brought to respondent’s attention in the 1996-97 school year the payment methodology was corrected. In any event, there is no indication in the record that this methodology resulted in an additional cost to the district.

The campaign literature complained of by petitioner appears to be factual information concerning the 1995 and 1997 bus propositions, and the 1995 and 1996 budget propositions. A board of education is entitled to provide voters with factual information concerning a proposed budget or proposition, which describes the impact of a vote (Appeal of Cochran,, 35 Ed Dept Rep 555; Appeal of Mandell, 35 id. 538). Moreover, petitioner has failed to demonstrate that any alleged irregularities actually affected the outcome of any election. Thus, petitioner has failed to establish any basis for relief.

The superintendent’s contract clearly allowed for the board to pay her an educational allowance. Petitioner has failed to demonstrate that this benefit was in any way improper.

In addition, although petitioner contends that certain capital project expenditures were improper, he presents no evidence to support this notion. Respondent submitted the proposition authorizing the expenditures as well as the vote totals demonstrating it was approved by the electorate. Thus, there is no evidence before me of impropriety concerning this matter.

Finally, petitioner appears to allege that respondent’s separation payment to Superintendent Brenda Luck was improperly authorized in an executive session. Inasmuch as the Open Meetings Law governs the conduct of executive sessions, allegations with respect thereto may not be the basis for an appeal to the Commissioner of Education (Appeal of Lambert, et al., 37 Ed Dept Rep 588). Public Officers Law "107 vests exclusive jurisdiction of complaints alleging violations of the Open Meetings Law in New York State Supreme Court. Thus, they cannot be adjudicated in an appeal to the Commissioner (id.).

Based on the foregoing I find no basis to sustain petitioner’s appeal.