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Decision No. 14,112

Appeal of RODNEY BORDEAUX from action of the Board of Education of the Wyandanch Union Free School District regarding board practices.

Decision No. 14,112

(April 27, 1999)

Thomas F. Liotti, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals certain actions of the Board of Education of the Wyandanch Union Free School District ("respondent") regarding budget expenditures and board practices. The appeal must be dismissed.

Petitioner contends that respondent failed to elect a qualified voter to preside over board meetings, failed to provide copies of district expenditures, failed to provide proper notice in local publications, and failed to discuss budget expenditures in public meetings. Petitioner also alleges respondent improperly paid consultants. Petitioner requests an order permitting voters to vote at all district meetings and directing respondent to provide reports of district expenditures.

Respondent denies petitioner's allegations and contends that the petition is untimely and incomprehensible. Respondent also maintains that petitioner did not provide proper legal notice. Respondent further contends that it discusses district expenditures and budgets at public meetings prior to adoption and that the minutes of its meetings are made available to the public.

Initially, I will address several procedural issues. Petitioner submitted a letter and exhibits to my Office of Counsel on or about January 13, 1998, nearly two months after the initial petition was filed, but before respondent filed its answer. These papers raise new allegations regarding the position of district treasurer and request new relief. Additional pleadings may only be submitted with the prior permission of the Commissioner (8 NYCRR "275.3[b]). Petitioner did not request or obtain such permission. Furthermore, I will not accept material which raises new issues and introduces new exhibits that are not relevant to the appeal (Appeal of Johnson, 38 Ed Dept Rep ___, Decision No. 14086, dated March 10, 1999; Appeal of Sherman, 36 id. 168). Therefore, I have not considered these materials.

Respondent contends that the petition must be dismissed because it is incomprehensible. A petition must contain a claim showing that petitioner is entitled to relief, a demand for the relief, and must be sufficiently clear to advise respondent of the nature of petitioner's claim and the act(s) complained of (8 NYCRR "275.10; Appeal of Brousseau, 37 Ed Dept Rep 295). When petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate, particularly when there is no evidence of prejudice to the opposing party (Appeal of Bowers, 34 Ed Dept Rep 603). The one-page petition consists of six paragraphs, each only a sentence or two in length. It fails to specify when the alleged improper practices occurred and fails to provide any detail regarding the allegations. For instance, petitioner alleges respondent failed to provide proper notice in local publications, but does not state the type of notice or the alleged defect. Because petitioner's statements are not clear and concise it is difficult to determine the exact nature of the violations alleged or the basis for the relief requested. Therefore, the petition must be dismissed for failure to comply with 8 NYCRR "275.10 (see Appeal of Jenkins, 36 Ed Dept Rep 497).

In addition, several of petitioner's claims must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Grihin, 38 Ed Dept Rep 399). Petitioner alleges that respondent failed to release budget reports in June, July and August. Assuming that petitioner is referring to June, July and August 1997, the allegations are untimely since the petition was commenced on October 28, 1997, more than 30 days later. Similarly, petitioner's allegations regarding the district's annual meeting, which was held in July 1997, are also untimely. Accordingly, these claims must be dismissed.

Even if it were not dismissed on procedural grounds, the appeal would be dismissed on the merits. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Acme Bus Corporation, 37 Ed Dept Rep 219). Petitioner makes several vague accusations regarding respondent's budget practices. As noted above he fails to provide any specific information about the alleged improper practices. Furthermore, he does not provide a single item of evidence or supporting affidavit with the petition in support of his allegations. Therefore, petitioner has failed to meet his burden of proof and the appeal must be dismissed.

In light of the foregoing, I will not address respondent's remaining contentions.