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Decision No. 14,577

Appeal of RICHARD HOLLISTER from action of the Board of Education of the Potsdam Central School District regarding district finances.

Decision No. 14,577

(May 21, 2001)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Marc H. Reitz, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the financial practices of the Board of Education of the Potsdam Central School District ("respondent") that allegedly led to a contingency budget for the 2000-01 school year. The appeal must be dismissed.

An independent audit obtained by respondent in 1999 indicated that the district had developed a significant deficit due to a variety of factors including the overestimation of revenues, underestimation of expenditures, failure to increase real property taxes as appropriate, and improper revenue anticipation note borrowing between 1994 and 1999. In addition to other measures to remedy this financial predicament, the State Legislature adopted Chapter 470 of the Laws of 1999 that enabled the district to finance the deficit and repay it over a five-year period. Following the repeated defeat of the 2000-01 budget, respondent approved a contingency budget on June 27, 2000. This appeal ensued.

Petitioner contends that respondent"s handling of the district"s finances between 1994 and 1999 led to the 2000-01 contingency budget and that further investigation is required to determine whether current or past school employees and officials violated any local, state, or federal laws. Respondent contends that the petition should be dismissed on various procedural grounds and asserts that the current administration has acted properly to address the financial issues raised by petitioner.

Initially, I will address several procedural defenses raised by respondent. The regulations of the Commissioner require that all pleadings be verified (8 NYCRR "275.5), that the petition set forth the allegations of the parties in numbered paragraphs (8 NYCRR "275.3[c]), and that the petition contain a clear and concise statement of the petitioner"s claim (8 NYCRR "275.10). The record indicates that an affidavit of verification was filed with my Office of Counsel. While it appears that respondent did not receive a copy of the verification, such omission is not sufficient to require that I dismiss the petition (Applications of Eisencraft, 38 Ed Dept Rep 553, Decision No. 14,092). With respect to the format of the petition, I find that the petition is sufficiently clear to advise respondent of the nature of the claims and demand for relief and to formulate a complete response. Where, as here, a petitioner is proceeding without representation by counsel, a liberal interpretation of the rules is appropriate, particularly when there is no evidence of prejudice to respondent (Appeal of Christe, 40 Ed Dept Rep ___, Decision No. 14,514; Appeal of Cieslik, 40 id. ___, Decision No. 14,478). Respondent does not plead any prejudice, nor do I find any such prejudice. Accordingly, I decline to dismiss the petition on these grounds.

The petition must be dismissed, however, as untimely. An appeal to the Commissioner of Education 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 shown (8 NYCRR "275.16). Although the appeal was commenced within 30 days of respondent"s approval of its contingency budget on June 27, 2000, petitioner has not articulated any claim regarding the approval of the contingency budget itself. Rather, petitioner has requested a review of various actions taken by respondent between 1994 and 1999 that created the financial predicament allegedly leading to the contingency budget. The petition was filed well beyond 30 days from the actions which occurred during these years.

Petitioner acknowledges that the current superintendent and business manager are not responsible for the actions complained of and believes that these administrators have guided the district in a positive direction through their diligence, hard work, and professionalism. Respondent sees no benefit in apportioning blame for past events and is more concerned with focusing its limited resources on improving the district"s present and future. While the record indicates various flaws in respondent"s prior financial practices, those actions occurred and were addressed by respondent more than 30 days before the commencement of this petition. In view of the foregoing, I do not see a sufficient reason to excuse petitioner"s delay in commencing this appeal.

My Office of Audit Services has a copy of the independent audit report for its use in any future audits of the Potsdam Central School District.