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Decision No. 14,313

Appeal of F. STEVEN KIRK from action of the Board of Education of the Hoosic Valley Central School District relating to a building construction project

Decision No. 14,313

(February 25, 2000)

Whiteman Osterman & Hanna, attorneys for respondent, Melvin Osterman, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the results of a special district meeting held on April 13, 1999 which approved, by a vote of 316 to 277, a proposition authorizing the financing and construction of a new central services facility. The appeal must be dismissed.

Petitioner commenced this appeal through personal service of a copy of the petition on respondent on October 20, 1999. On November 12, 1999, I denied petitioner's request for interim relief pending a final determination of his appeal.

Petitioner contends that the results of the vote should be overturned and nullified because the vote was affected by respondent's dissemination of allegedly false and misleading representations concerning the fiscal implications of the building project. Petitioner provides a copy of a newsletter distributed by respondent immediately preceding the April 13, 1999 vote which states, in part:

"Central Services Facility Proposal Won't Increase Your School Taxes or add staff . . . and here's why . . . The combination of more State aid, investing at a higher rate than we borrow and leasing part of the facility will allow us to build this facility without having to raise any additional taxes."

Petitioner alleges that this statement is false and misleading because school districts are prohibited from leasing building space to a private concern by Article 8, Section 1 of the State Constitution and Education Law "403-a. Petitioner provides a copy of a February 9, 1999 article that appeared in a weekly newspaper which describes an informational presentation hosted by the school district. Petitioner contends that the presentation demonstrates that the district was in "aggressive negotiations" to lease the entire repair facility portion of the proposed facility to a private bus company.

Petitioner alleges that respondent was fully aware that it could not lease out any portion of the proposed facility to a private entity, but that it continued to promote the leasing plan in an attempt to obtain voter approval of the project by claiming that the lease agreement would not result in increased taxes and would generate income and profit for the district. Petitioner contends that respondent's actions in disseminating the false and misleading information affected the results of the April 13, 1999 vote.

Petitioner requests that I overturn and nullify the results of the vote and direct respondent to hold a new vote on the proposed facility, and require respondent to include the actual costs of the project to district voters in any information distributed in connection with the proposed facility.

Respondent denies petitioner's allegations and contends that the appeal should be dismissed as untimely and as premature.

Section 275.16 of the Commissioner’s regulations requires that an appeal to the Commissioner be instituted within 30 days of the making of a decision or the performance of the act complained of, provided that the Commissioner may excuse the late filing of an appeal for good cause shown. Petitioner complains of certain acts taken by respondent with respect to a vote held on April 13, 1999. Where, as here, a petitioner alleges acts comprising a series of events closely related to an election, an appeal has been considered timely if brought within 30 days of the election (Appeal of Schadtle and Wilcox, 38 Ed Dept Rep 599, Decision No. 14,102; Appeal of Rampello, 37 id. 153, Decision No. 13,830). However, this appeal was not commenced until October 20, 1999.

Petitioner states in his reply that he requested and received an "exemption" from the 30 day rule set forth in 8 NYCRR "275.16. However, there is no provision in the Commissioner's regulations which authorizes such exemption and there is nothing in the record which establishes that petitioner's request for an exemption was approved in any way. While the petition was accepted for filing pursuant to 8 NYCRR "275.9, such filing does not constitute an exemption from the 30 day rule and the petition so filed is subject to any affirmative defense, including untimeliness, interposed by respondent (8 NYCRR "275.12).

Petitioner requests that I excuse his late appeal on the ground that, as a layperson, he has no knowledge of the laws relating to appeals to the Commissioner and that he was unaware until the week of September 27, 1999 that respondent's alleged plan to lease a portion of the proposed facility to a private concern may violate State law. It is well settled, however, that in the absence of unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of Houghton, 38 Ed Dept Rep 777, Decision No. 14,141; Appeal of Stamler, 38 id. 292, Decision No. 14,036; Appeal of Moessinger, 33 id. 487, Decision No. 13,123). Likewise, petitioner's ignorance of the applicable laws relating to the construction and leasing of school facilities is insufficient to excuse his untimely appeal. The laws of this State are a matter of public record and are available to petitioner and others who may seek to review them. Therefore, the fact that petitioner did not become aware until the last week of September 1999 that respondent's actions may have violated State law is insufficient to excuse petitioner's delay in commencing his appeal until October 20, 1999.


Since the record fails to establish any unusual circumstances to excuse the late filing of the petition, the appeal must be dismissed as untimely.



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