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Decision No. 14,116

Appeal of LARRY LOMBARDO from action of the Board of Education of the Lynbrook Union Free School District regarding a budget vote.

Decision 14,116

(April 29, 1999)

Ehrlich, Frazer & Feldman, attorneys for respondent, Jacob S. Feldman & Laura A. Ferrugiari, Esqs., of counsel

MILLS, Commissioner.--Petitioner, a resident and taxpayer of the Lynbrook Union Free School District, challenges the district's 1998-99 annual budget vote. The appeal must be dismissed.

On May 19, 1998, the Board of Education of the Lynbrook Union Free School District ("respondent") held its annual election and budget vote. On that date, the voters adopted the proposed budget. Prior to the vote, in March 1998, respondent provided district residents with detailed information regarding its proposed budget including changes from the previous budget in various categories. In addition, a publication of line by line expenditures and revenue was available for inspection at all of respondent's schools and in the Lynbrook, Hewlett and East Rockaway public libraries. On May 6, 1998, at a public board meeting, respondent presented comparisons to and changes from the 1997-98 budget. Respondent did not, however, include a proposed tax rate increase in the estimated budget.

Petitioner commenced this appeal on June 18, 1998. Petitioner's request for interim relief was denied on July 2, 1998.

Petitioner claims that respondent’s failure to include the estimated tax rate increase amounts to a failure to provide residents with complete information. He seeks to have the May 19, 1998 budget vote invalidated and a new vote scheduled.

Respondent maintains that the appeal should be dismissed because petitioner failed to overcome the presumption of regularity of a budget vote. Respondent claims it provided adequate information relating to the proposed budget in satisfaction of all legal requirements. Specifically, respondent contends that the law does not require a board of education to provide the public with an estimated percentage increase in the tax rate resulting from a proposed budget. Additionally, respondent contends that certain information (final State aid figures, a final adjusted base proportion ratio from the Nassau County Board of Assessors and final fund balance figures from the district's auditors) necessary to effectively project an estimated tax rate increase was unavailable at the time the district's informational materials on the budget were produced and it, therefore, had a rational reason for omitting this information. Additionally, respondent contends that petitioner’s reply raises new issues and facts and should be disregarded.

As a threshold matter, respondent contends that petitioner’s reply is not responsive to respondent’s affirmative defenses and contains additional materials and arguments not contained in the petition. The purpose of a reply is to respond to affirmative defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14; Appeal of John W. and Lorraine W., 37 Ed Dept Rep 713; Appeal of Clay, et al., 37 id. 697). A reply is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition (Appeal of John W. and Lorraine W., supra; Appeal of Clay, supra). Therefore, I will not consider those portions of petitioner’s reply containing new allegations and material not responsive to new material or affirmative defenses in the answer.

In any event, I am constrained to dismiss the appeal on the merits. Education Law "1716(1) requires a board of education to present a detailed written statement of the anticipated expenditures for the ensuing school year. Additionally, a proposed budget must be presented in three components: a program component, a capital component and an administrative component (Education Law "1716[4]). This statute, however, does not specifically require that an anticipated percentage increase in the tax rate be included in the budget information. Accordingly, the omission of an estimated tax rate increase by respondent is an insufficient basis upon which to invalidate the vote.

Therefore, the only remaining question is whether the information presented by respondent to the voters regarding the 1998-99 budget was somehow misleading and, as such, affected the outcome of the election. I will not invalidate a budget vote unless the information presented to the voters was misleading and is proven by petitioner to have affected the outcome of the vote (Appeal of Community League of Garden City South, Inc., 33 Ed Dept Rep 213). The record reflects that respondent’s proposed budget contained detailed information of anticipated revenues and expenditures including a comparison of the then current budget to the proposed budget. It is clear from reviewing the proposed budget and information that there were anticipated budget increases that would likely lead to a tax increase. It cannot, therefore, be concluded that the voters were presented with misleading information, as they had sufficient information to reasonably anticipate that a tax increase was in the offing. Moreover, petitioner does not present any evidence that this allegedly misleading information affected the outcome of the vote. Accordingly, the appeal must be dismissed.