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Decision No. 14,089

Appeal of MARIE E. CALHOUN from action of the Board of Education of the Garrison Union Free School District regarding the expenditure of public funds.

Decision No. 14, 089

(March 16, 1999)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges an expenditure by the Board of Education of the Garrison Union Free School District ("respondent") in preparation for a school building project bond referendum. The appeal must be dismissed.

On February 5, 1997, respondent adopted a resolution to hire the Warren & Panzer Group ("Warren & Panzer"), an engineering and architectural consulting firm, to assist the Garrison Union Free School District with the planning and implementation phase of a proposed building project. The proposed building project would require subsequent voter approval by a referendum.

Pursuant to a letter dated April 28, 1997, Warren & Panzer agreed to provide the district with "complete pre-Bond services, including a facilities evaluation and preparation of a written document stating [our] findings, and including estimates of probable construction costs." The letter included a list outlining the scope of the work to be performed by Warren & Panzer. The cost for these services was set at $10,000, which would be deducted from the firm's design/construction fees if the bond referendum were approved. The letter also indicated that the district would be billed "for reimbursable expenses needed for the passage of the Bond, such as renderings, photographs, project informational pamphlets and other public relations brochures, as required." An invoice dated August 18, 1998 indicates that, as of that date, only $2,500 of the $10,000 fee had been paid by respondent to Warren & Panzer, and respondent asserts that as of October 5, 1998, no further payments had been made.

In September 1997, respondent assembled a Building Committee ("the Committee") to review the district's then current facility and to make recommendations to respondent regarding a renovation/construction project. The Committee was comprised of one member of respondent (who served as chair), the superintendent of schools, parents, teachers, and members of the community at large, including petitioner. The Committee held its first meeting on October 28, 1997, met approximately twice a month through June 1998, and on several subsequent occasions. The Committee considered proposals regarding various ways to renovate and/or expand the district's facility, and held several open public information sessions in an attempt to gather input from the public and to inform the public of the district's options. The Committee also produced a short videotape which was intended to highlight the overcrowded conditions in the school building. This videotape was produced with funds raised through private donations.

On October 23, 1997, Warren & Panzer made a presentation at a special meeting of respondent. The first part of this presentation focused on the public relations aspects of a bond referendum. The materials prepared by Warren & Panzer stated the introductory points of the presentation: "We Must Develop a Campaign Strategy in Order to Focus our Efforts on Getting the 'Yes' Vote to the Polls" and "We Suggest for Further Development and Discussion a Ten Week 'Yes' Campaign Strategy That Will Allow Us to Accomplish a Successful 'Yes' Vote in This Short Time Frame." During a Committee meeting held in the spring of 1998, a representative of Warren & Panzer distributed similar materials, recommending ways to facilitate passage of the bond issue.

In May 1998, for reasons unspecified by either petitioner or respondent, Warren & Panzer subcontracted the architectural work on the proposed project to Perkins Eastman Architects, P.C.

At a June 18, 1998 meeting, respondent accepted the Committee's proposal that the then current building space of 20,976 square feet be expanded to 35,502 square feet, at an estimated cost of $5 - $6 million.

At some point after its June 18 meeting, respondent scheduled a building project referendum for October 20, 1998. On September 15, 1998 Dr. Marilyn Brannigan, then interim superintendent of schools for the district, was served with a copy of the petition. It does not appear that any members of respondent were served with the notice of petition or the petition.

Petitioner contends that respondent impermissibly hired Warren & Panzer, for a fee of $10,000, to conduct a public relations campaign urging residents of the district to vote affirmatively for the October 20, 1998 school building project referendum. In support of her petition, petitioner submits two brochures, each of which contains a summary of pre-bond activities and bond referendum campaign strategies recommended by Warren & Panzer. No other evidence is submitted in support of the petition. Petitioner seeks restitution of the $10,000 fee from the individual members of respondent and an acknowledgment that respondent improperly expended public funds.

Respondent maintains that petitioner's appeal must be dismissed on a variety of procedural and factual grounds. Specifically, respondent contends that petitioner fails to state a claim upon which relief may be granted; that petitioner has failed to properly plead a class action; that petitioner has failed to join necessary parties; that the petition is untimely; that petitioner has no legal right to the monetary relief requested; and that respondent, in fact, properly used public funds for the pre-bond work on the building project referendum. In support of its answer, respondent submits affidavits by three persons, the president of respondent, a member of respondent who also serves as chairperson of the Committee, and the interim superintendent of schools.

As a threshold matter, the appeal must be dismissed for failure to join the individual board members as respondents. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Heller, 38 Ed Dept Rep 335, Appeal of Schuler, 37 id. 512; Appeal of Garard, 36 id. 15). Joinder requires that an individual be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform that individual that he or she should respond to the petition and enter a defense (Appeal of Heller, supra; Application to Reopen Appeal of Reese, et al., 34 Ed Dept Rep 447).

In the instant appeal, petitioner failed to name the individual board members as respondents in the caption of the petition, despite the fact that petitioner seeks restitution from such board members individually. Petitioner similarly failed to serve any of the board members with a notice of petition or petition. As such, the individual board members, whose rights would certainly be adversely affected by a determination of this appeal in petitioner's favor, were not on notice that they were intended to be parties to the appeal and were required to submit answers to the petition. The appeal must, therefore, be dismissed for failure to join necessary parties (Appealof Heller, supra; Appeal of Schuler, supra).

The appeal must also be dismissed to the extent that petitioner seeks relief that is beyond the authority of the Commissioner to grant. As noted, petitioner seeks repayment of $10,000 from the individual board members. It is well established that the Commissioner of Education has no authority to award monetary damages (Appeals of Todd, 37 Ed Dept Rep 419; Appeal ofJenkins, 36 id. 497; Appeal of Tomassi, 36 id. 253). As such, petitioner's claim for restitution must be dismissed.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. In an appeal to the Commissioner, petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR " 275.10; Appeal of Shufelt, 38 Ed Dept Rep 274). In the instant case, petitioner has failed to establish a factual basis for her claim that respondent improperly expended public funds to promote a "yes" vote at the October 20, 1998 school building project bond referendum. Rather, petitioner relies solely on two brochures prepared by the district's architectural and engineering consulting firm regarding possible strategies to obtain a "yes" vote.

Petitioner presents no evidence to indicate that Warren & Panzer (or Perkins Eastman) did not perform the myriad of pre-bond activities for which respondent hired them. Nor does petitioner provide any evidence that respondent asked or required Warren & Panzer to produce the two brochures outlining public relations strategies. In fact those brochures were of a general nature, and were apparently provided by Warren & Panzer as a small component of a much larger package of pre-bond services. To assert, as petitioner does, that the $10,000 fee that respondent agreed to pay Warren & Panzer was solely for the purpose of conducting a public relations campaign, is simply not supported by the facts.

In view of the foregoing disposition, I will not address the other procedural issues raised by respondent.