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Decision No. 14,528

Appeal of PHILIP C. GARGAN from the action of the Board of Education of the City School District of the City of Saratoga Springs and the Superintendent of Schools relating to use of funds for construction.

Decision No. 14,528

(December 22, 2000)

Whiteman, Osterman and Hanna, attorneys for respondents, Beth A. Bourassa, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges a resolution by the Board of Education of the City School District of the City of Saratoga Springs ("respondent board") which transferred certain funds within the 1999-2000 school budget and awarded a contract for the construction of a fire escape at the district’s administrative offices. Petitioner further seeks an order directing respondent board to submit the issues relating to the construction of the fire escape to a public vote. The appeal must be dismissed.

The administrative offices for respondents’ district are located on the first and second floors of a building at 5 Wells Street in the City of Saratoga Springs. In a May 10, 1999 letter, the State Education Department's Office of Facilities Planning advised respondent superintendent, John E. MacFadden, that the administrative building lacked two means of egress from its second floor as required by the New York State Uniform Fire Prevention and Building Code and Regulations of the Commissioner of Education. In order to accommodate the changes necessary to bring the administrative building into compliance with the building code and Commissioner’s regulations, respondents included an appropriation for between $15,000 and $20,000 in its proposed 1999-2000 school budget. District voters approved the proposed budget, including this appropriation on May 18, 1999.

On or about December 31, 1999, the district solicited bids for construction of a fire escape to provide a second means of egress for the Wells Street administrative building. The lowest bid was submitted by Duguid Construction Services ("Duguid") in the amount of $51,270. To cover the shortfall between the amount appropriated in the district's 1999-2000 budget for this project and the lowest bid, respondent board, in a resolution adopted on February 8, 2000, authorized the transfer of $31,270 within the budget’s general fund from the rental and leases account to the deferred maintenance account. This resolution also awarded the contract for the construction project to Duguid. Petitioner challenges this resolution in the instant appeal. I denied petitioner’s request for interim relief on March 9, 2000.

Petitioner contends that the resolution violates Education Law "416 which requires voter approval of capital projects and Education Law "1718(1) which, he asserts, prohibits a board of education from incurring district liability in excess of an amount appropriated in a budget approved by district voters. Petitioner contends that respondents failed to follow proper procedures for submitting the fire escape construction project to district voters on May 18, 1999. He also contends that respondents "greatly enlarged" the construction project previously authorized by district voters.

Respondents contend that the challenged resolution is in all respects lawful. Respondents assert that petitioner has no standing to challenge the February 8, 2000 resolution because he is not an aggrieved party. They contend that the appeal should be dismissed as untimely to the extent that petitioner challenges respondents' actions in obtaining voter approval for the expenditure of up to $20,000 through the line item appropriation in the general fund of the district's 1999-2000 budget. Respondents also contend that the appeal should be dismissed because petitioner failed to join a necessary party.

As a preliminary matter, petitioner offers additional facts, assertions and exhibits in his reply affidavit to buttress arguments he makes in his petition. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been included in the petition (Appeal of Adriatico, 39 Ed Dept Rep 248, Decision No. 14,228; Appeal of Breud, et al., 38 id. 748, Decision No. 14,133). Therefore, while I have reviewed petitioner's reply, I have not considered those portions which contain new assertions, facts or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondents claim that petitioner is not aggrieved and lacks standing to bring this appeal because the board's action did not result in a tax increase and was authorized as an ordinary contingent expense. Petitioner is a district resident. A district resident has standing to challenge an allegedly illegal expenditure of district funds (Appeal of Goldin, 38 Ed Dept Rep 322, Decision No. 14,044; Appeal of Kimball, 36 id. 508, Decision No. 13,787; Appeal of Dumack Ver Hunce, 26 id. 340, Decision No. 11,777). I find that petitioner has requisite standing to maintain this appeal.

Respondents contend that the appeal should be dismissed as untimely to the extent that it challenges respondents' actions with respect to the amount of the funds for which the district sought voter approval, and/or the means by which such approval was sought and obtained in May 1999. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause (8 NYCRR "275.16). In this case the budget vote occurred on May 18, 1999. Petitioner commenced this appeal on February 23, 2000, more than nine months later. Petitioner states that his appeal is timely because respondent board did not take action on the funding of the fire escape project until February 8, 2000. I do not find this excuse acceptable with respect to the challenge to the procedures that the district used to submit the construction project to district voters. To the extent that petitioner is claiming such procedural defects, the appeal should have been commenced within 30 days of the budget vote and is untimely. However, petitioner's claims relating to the cost of the project, including the amount stated in the line item appropriation, are timely. Such claims arise directly from the February 8, 2000 resolution of respondent board, which transferred funds within the general fund to meet the budget shortfall for the project. Petitioner commenced this appeal within 30 days of February 8, 2000.

Respondents claim that petitioner failed to join a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of World Network International Services, 39 Ed Dept Rep 30, Decision No. 14,164). Here, petitioner requests that I direct respondent board to rescind its February 8, 2000 resolution, which awarded the construction contract to Duguid. Clearly, the rights of Duguid would be affected by a determination in favor of petitioner. Duguid is a necessary party to this proceeding, and petitioner's failure to join Duguid requires dismissal of this appeal (Appeal of Gang, 32 Ed Dept Rep 660, Decision No. 12,949).

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Petitioner vaguely alleges that respondents failed to properly submit the construction project to district voters on May 18, 1999. Petitioner has failed to prove any impropriety in the voters approval of the contested project through a line item appropriation within the proposed 1999-2000 school budget (Appeal of Gang, supra). Petitioner has, likewise, failed to establish in the record before me that respondents improperly submitted the project to district voters. After the voters approved the project, it was competitively bid as required by General Municipal Law "103. The lowest bid respondents received for the project was $51,270, $31,270 higher than the appropriation approved by district voters. Respondent board's resolution authorized the transfer of the additional $31,270 needed for construction of the second means of egress from another account in the general fund. This transfer did not result in an increase in the total amount of the appropriations authorized by district voters; it simply transferred funds between functional units within the general fund.

Section 170.2(l) of the Regulations of the Commissioner of Education authorizes school districts to make transfers between and within functional unit appropriations for teachers' salaries and for ordinary contingent expenses within the amount of total annual appropriations voted or authorized (Appeal of Blizzard, 35 Ed Dept Rep 120, Decision No. 13,485; Appeal of Lauterback, 30 id. 223, Decision No. 12,441). An ordinary contingent expense includes an expenditure necessary to maintain the education program, preserve property and assure the health and safety of students and staff (Appeal of Lauterback, supra; Formal Opinion of Counsel No. 213, 7 Ed Dept Rep 153). Here, the expenditure is for a second means of egress needed to meet the requirements of the State's Uniform Fire Prevention and Building Code and the Regulations of the Commissioner of Education. Such expenditure is necessary to preserve the safety of the district's staff who work in the building, and would constitute an ordinary contingent expense. Accordingly, respondent board was authorized to make the inter-fund transfer of $31,270 without further voter approval.

Petitioner alleges that the project was greatly enlarged prior to respondents' request for bids. In an appeal brought before me pursuant to Education Law "310, petitioners have the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Robert D. and Barbara D., 38 Ed Dept Rep 18, Decision No. 13,975). Petitioner has not established in the record before me that respondents enlarged this project or sought to use the funding for a purpose other than to construct a second means of egress from the second floor of the Wells Street administrative building. Petitioner has also failed to establish that respondents intentionally underestimated the cost of the construction project or otherwise manipulated funds in violation of the Education Law (Appeal of Leman, 39 Ed Dept Rep 35, Decision No. 14,166). I have examined petitioner's remaining contentions and find them to be without merit.