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Decision No. 14,657

Appeal of FRANK J. RUSSO, JR. from action of the Board of Education of the Port Washington Union Free School District regarding a budget vote.

Decision No. 14,657

(November 29, 2001)

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

MILLS, Commissioner.--Petitioner challenges the sufficiency and accuracy of certain information disseminated by the Board of Education of the Port Washington Union Free School District ("respondent") in advance of the annual budget vote. The appeal must be dismissed.

At the district"s May 15, 2001 annual meeting, district voters approved the annual budget proposed by respondent. In advance of that meeting, respondent circulated a report providing district residents with detailed information regarding its budget proposal. The budget report included, among other things, a budget summary with a line-by-line itemization of the district"s proposed expenditures by category, indicating a total budget increase of approximately 8.9%. The report also compared each proposed expense to the current year"s budget amount. The report additionally contained a section entitled "Your Tax Rate" which advised district residents that it was difficult to predict the impact of its budget proposal on the tax rate because much of the information needed to make such an estimate was unavailable at the time the report was prepared. The report did, however, advise district residents that they could "expect a tax rate increase anywhere between 9% and 13%."

Petitioner, a district resident and taxpayer, commenced this appeal on May 31, 2001. Petitioner asserts that respondent"s use of a range for the anticipated tax rate increase departed from its past practice of providing district voters with a single estimated figure. Petitioner further claims that respondent deliberately underestimated the potential range of the tax rate increase and asserts that if district residents had been "told the truth" the budget would have been defeated. For relief, petitioner requests that the May 15, 2001 budget vote be invalidated and a new vote scheduled.

Respondent maintains that it has no statutory obligation to provide district residents with an estimated change in the tax rate. Respondent further explains that it provided district residents with an estimated range for the tax rate increase because at the time the budget report went to print, certain information needed to predict the increase (i.e., final State aid figures, a final adjusted base proportion ratio from the Nassau County Board of Assessors and final fund balance figures from the district"s auditors) was unavailable. Respondent also asserts that petitioner has failed to overcome the presumption of regularity of the budget vote or establish that the alleged irregularities affected the outcome of the election.

Preliminarily, I note that respondent objects to petitioner"s reply on the grounds that it contains new factual allegations and exhibits that should have been included in his petition. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add exhibits that should have been in the petition (Appeal of Marquette, et al., 40 Ed Dept Rep ___, Decision No. 14,568; Appeal of Balen, 40 id. ___, Decision No. 14,532). Accordingly, although I will accept petitioner's reply, I will not consider those portions that contain new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed. Education Law "1716(1) requires a board of education to present a detailed written statement of the anticipated expenditures for the ensuing school year. A proposed budget must be presented in three components: a program component, a capital component and an administrative component (Education Law "1716[4]). Additionally, a board of education must prepare and make available a property tax report card which shall, among other things, state the amount of total spending and total estimated school tax levy that would result from the adoption of the proposed budget and the percentage increase or decrease in total spending and total school tax levy as compared with the school district budget for the preceding school year (Education Law "1716[7]). Section 1716, however, does not specifically require the inclusion of an anticipated percentage increase in the tax rate in such budget information. Accordingly, respondent"s failure to provide a specific figure for an estimated tax rate increase is an insufficient basis upon which to invalidate the vote (Appeal of Lombardo, 38 Ed Dept Rep 680, Decision No. 14,116).

Nor do I find that the information supplied by respondent was misleading or affected the outcome of the election. I will not invalidate an election unless the information presented to the voters was misleading and is proven by petitioner to have affected the outcome of the vote (Appeal of Brousseau, 39 Ed Dept Rep 397, Decision No. 14,271; Appeal of Leman, 38 id. 683, Decision No. 14,117). The record reflects that respondent"s budget report contained detailed information of anticipated revenues and expenditures including a comparison of the then current budget to the proposed budget. Although respondent was not required to do so, it also provided district residents with a range estimate for the expected tax rate increase, but prudently informed district residents of the difficulty inherent in making such a prediction before all the relevant data needed to do so was available. I note that according to petitioner, a tax rate increase of 13.15% was ultimately established for the district. Although this figure is slightly beyond the range predicted by respondent, in view of the disclaimer provided with respondent"s prediction, I find no basis to conclude that respondent"s information was misleading. Nor has petitioner supplied any proof establishing that voters were, in fact, misled. Accordingly, the appeal must be dismissed.