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Decision No. 14,128

Appeals of LARRY LOMBARDO from action of the Board of Education of the Lynbrook Union Free School District regarding payment for architectural services.

Decision No. 14,128

(May 8, 1999)

Ehrlich, Frazer, Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel

MILLS, Commissioner.--Petitioner, a resident and taxpayer of the Lynbrook Union Free School District, challenges, in two separate appeals, respondent’s hiring of an architect without competitive bidding and the payment for his services. Because the appeals contain similar facts and issues, they are consolidated for decision. The appeals must be dismissed.

On March 5, 1997, the Board of Education of the Lynbrook Union Free School District ("respondent") held a capital bond issue vote. On that date, district voters approved the capital bond issue for $11,921,000.00. The purpose of the bond issue was to fund capital projects for the construction, reconstruction and repair of district facilities. In connection with these projects, respondent retained the services of an architect without competitive bidding. This particular architect had worked on other capital projects for the district in previous years. The architect's fees were based on customary charges for projects of this nature and magnitude.

Respondent initially deposited the proceeds of the capital bond issue into an interest bearing account with European American Bank. When invoices are received from capital project vendors, money is transferred from this higher interest bearing account into a separate capital project fund in the Fleet bank (previously the National Bank of North America). Thereafter, capital project vendors are paid when respondent transfers the invoice amount from the capital project fund to the district's general fund from which a check is then issued.

On June 13, 1997, respondent received an invoice from the architect for $105,546.56. On July 30, 1997, funds were transferred from the capital project fund to the general fund and a check was issued from the general fund to the architect in the amount of the invoice.

On June 10, 1998, petitioner commenced an appeal relating to the lack of competitive bidding and the manner of payment to the architect. Petitioner’s request for interim relief in this appeal was denied on June 25, 1998. On September 13, 1998, petitioner commenced another appeal challenging the same payment to the same architect. Petitioner’s request for interim relief in this appeal was denied on October 1, 1998.

Petitioner claims that respondent improperly failed to competitively bid the architectural services. He also contends respondent paid the architect from the district's general fund rather than the capital project fund and that capital project funds were commingled with the general fund. Additionally, petitioner claims a Freedom of Information Law (FOIL) request was improperly denied.

Respondent maintains that the appeal should be dismissed because contracts for professional services are exempt from competitive bidding requirements. Moreover, respondent contends that the architect was properly paid from the capital project fund and that the capital project fund was separate from the general fund.

As a threshold matter, the appeals must be dismissed as untimely. An appeal to the Commissioner under Education Law "310 must be brought within 30 days of the act or decision complained of (8 NYCRR "275.16). The contract with the architect was entered into in 1997. The invoice at issue was paid on July 30, 1997. At the very latest, appeals challenging this payment should have been brought within 30 days of the payment of the bill in question to the architect. Instead, petitioner commenced the first appeal some eleven months later and the second appeal some fourteen months later. Accordingly, petitioner's claims concerning the award of the contract to the architect and the July 30, 1997 payment are dismissed as untimely (Appeal of McDougall, et al., 37 Ed Dept Rep 611).

Additionally, petitioner’s claim that another person’s FOIL request was improperly denied must be dismissed. An individual may not maintain an appeal pursuant to Education law "310 unless he or she is aggrieved in the sense that he or she has suffered an injury (Appeal of Todd, 37 Ed Dept Rep 419). Petitioner did not make the FOIL request at issue. Thus, petitioner lacks standing to assert the denial of another's FOIL request (Appeal of Todd, supra). Moreover, the appropriate forum for the review of alleged FOIL violations is the Supreme Court of the State of New York, not a "310 appeal to the Commissioner of Education (Public Officers Law "89; Appeal of Lilker, 37 Ed Dept Rep 529).

In any event, I am constrained to dismiss the appeals on the merits. A contract for the provision of professional services is not subject to the sealed competitive bidding requirements of the General Municipal Law "103 (Appeal of McDougall, et al., supra; Appeal of Shravah, et al., 36 Ed Dept Rep 396, aff’d Education Alternative, Inc. v Mills, Sup. Ct., Albany Co., Special Term, December 18, 1997; see also, Op. State Compt. 80-5). Accordingly, since architectural services are decidedly professional, respondent’s retention of an architect without soliciting bids was proper. Moreover, petitioner’s assertions that the district could have saved money on the architectural services in question are speculative and unsupported by facts. The record reflects that respondent engaged the services of an architect with a fee arrangement consistent with projects of this nature.

Finally, petitioner’s assertions concerning payments to the architect and the alleged commingling of the capital project fund with the general fund are unfounded. The records, including additional submissions by petitioner, reflect that the payment to the architect from the capital project fund was accounted for and the capital project fund was properly segregated from the general fund.

In light of this disposition, I need not address the parties remaining contentions.