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Decision No. 14,350

Appeal of BRUCE E. BAKER from action of the Board of Education of the Hoosick Falls Central School District and Nancy B. Chase, Superintendent of Schools, relating to an annual meeting.

Decision No. 14,350

(April 27, 2000)

G"nter Dully, Esq., attorney for respondents

Mills, Commissioner.--Petitioner challenges certain actions taken by the Board of Education of the Hoosick Falls Central School District ("respondent board") and the superintendent of schools relating to the district’s May 1999 annual meeting. The appeal must be dismissed.

Petitioner alleges that the proposed 1999-2000 school district budget was not available to the public until immediately before the annual meeting, and that when it was made available, it contained misleading information. In particular, petitioner claims that an information sheet provided in the district’s "1999/2000 Budget Document" contained erroneous budget information, and that respondent superintendent presented budget information to a local newspaper in a manner intended to confuse voters about the size and scope of the proposed tax increase. Petitioner also alleges that he "has been personally targeted by the superintendent for retribution for his previous insistence that she follow the rule of law in the operation of the school district." Petitioner requests that I conduct an ethics investigation of the district "for violations of [the] General Municipal Law and Chapter 436 of the Laws of 1997."

Respondents assert that the appeal should be dismissed for a variety of reasons. First, respondents claim that the Commissioner of Education lacks the authority to conduct an ethics investigation. Second, respondents assert that they fully carried out their duties under the law with respect to informing the public concerning the proposed school district budget. Third, respondents claim that petitioner failed to present any evidence of improper or illegal activities. Finally, respondents assert that the appeal is moot, since the voters defeated the proposed 1999-2000 budget.

Before reaching the merits of this appeal I will address several procedural issues. Initially, I note that subsequent to the filing of his appeal, petitioner submitted materials relating to ongoing correspondence with the New York State Committee on Open Government regarding the Freedom of Information Law. This issue is not germane to the instant appeal, and was not submitted in accordance with the Commissioner’s Regulations relating to Education Law "310 (see 8 NYCRR Parts 275 and 276). Accordingly, I have not considered these materials in this appeal.

Respondents contend that petitioner's appeal should be dismissed because the proposed 1999-2000 budget was defeated, thereby rendering moot any claim of personal damage to petitioner as a consequence of such budget. However, petitioner claims that respondents have engaged in improper and illegal activity, and that such activity is allegedly part of an ongoing pattern of wrongdoing. Therefore, I do not find this appeal to be moot (Appeal of Schadtle, 38 Ed Dept Rep 599, Decision No. 14,102).

Respondents also claim that the Commissioner of Education lacks jurisdiction to conduct an ethics investigation into improper and/or illegal activities in which they are alleged to have engaged. An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of B.B., 38 Ed Dept Rep 666, Decision No. 14,113; Appeal of DiStefano, 36 id. 217, Decision No. 13,705). Accordingly, the appeal must be dismissed because the sole relief sought by petitioner is beyond the authority of the Commissioner to grant.

In any event, petitioner has failed to establish any facts sufficient to warrant an investigation. 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, Decision No. 14,032). In the instant appeal, petitioner has failed to establish a factual basis for his claims that respondents acted improperly or illegally. Petitioner provides absolutely no affidavits, exhibits, or other documents with his petition to support his allegations. Rather, he merely asserts that respondents committed a variety of improper acts, and that those acts should serve as the basis for an ethics investigation. Accordingly, the appeal must be dismissed (Appeal of Tudor, 38 Ed Dept Rep 591, Decision No. 14,100).