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Decision No. 14,863

Appeal of EDWARD LILLY, LOUIS PALMERI and WILLIAM SPRY from action of Walter Polka as superintendent of the Lewiston-Porter Central School District regarding a budget.



(April 17, 2003)


F. Warren Kahn, attorney for respondent 

MILLS, Commissioner.--Petitioners, residents and taxpayers of the Lewiston-Porter Central School District, challenge an August 2002 determination of the Board of Education of the Lewiston-Porter Central School District ("the board") to revise the budget and seek removal of the board's superintendent, Walter Polka ("respondent").  The appeal must be dismissed.

At its April 16, 2002 meeting, the board passed a motion directing respondent to prepare a $31,225,206 budget for the 2002-2003 school year. At that time, the three petitioners herein were board members.  Respondent prepared a budget that listed $805,134 as the 2002-2003 bond debt service cost.  The actual bond debt service cost, however, was $1,739,258.  The difference of $934,124 was accounted for as an encumbered purchase order. District voters approved the budget on May 21, 2002.

In August 2002, the district's auditors discovered the encumbrance and advised that the total debt service should have been included as an appropriation in the 2002-2003 budget. The auditors recommended that the district liquidate the $934,124 encumbrance and amend the 2002-2003 budget to reflect the entire debt service payment.

At its August 20, 2002 meeting, the board approved a motion to increase the 2002-2003 budget by $934,124 to $32,159,330.  The encumbrance from the 2001-2002 school year was liquidated and used as revenue in the 2002-2003 budget.  Therefore, the adjustment had no impact on the 2002-2003 tax levy.

Petitioners commenced this appeal on September 13, 2002, and sought to stay implementation of the revised budget.  Their request for interim relief was denied on September 20, 2002.

Petitioners assert that respondent failed to prepare a budget for the 2002-2003 school year that complied with the board's directives and State law.  Petitioners seek nullification of the board's August budget motion and respondent's removal.  Respondent asserts that petitioners were required to join the board as a respondent and that petitioners failed to exhaust their administrative remedies.

The appeal must be dismissed for failure to join the board as 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 Patton, et al., 42 Ed Dept Rep __, Decision No. 14,832; Appeal of Roff, 41 id. __, Decision No. 14,708; Appeal of MacKay, 39 id. 815, Decision No. 14,391). Petitioners contend that the superintendent is the proper respondent because he produced the "inappropriate" budget.  However, petitioners seek to nullify a budget motion of the board. Accordingly, the board's authority would be affected by a ruling in petitioners" favor, and petitioners' failure to join it necessitates dismissal of the appeal.

Petitioners' application for respondent's removal must also be denied.  An application to remove a school officer must be brought pursuant to Education Law "306.  In such a proceeding, "277.1(b) of the Commissioner"s regulations requires that the notice of petition must specifically advise the respondent that the application is being made for respondent"s removal from office. In this case, petitioners have failed to comply with "277.1(b), but instead have used the notice prescribed under "275.11(a) for appeals brought pursuant to Education Law "310. A notice of petition which fails to contain the language required by the Commissioner"s regulations is fatally defective, and does not secure jurisdiction over the intended respondent (Application of Knapp, 41 Ed Dept Rep ____, Decision No. 14,608; Appeal of Khalid, 40 id. 621, Decision No. 14,570; Application of McCart, 39 id. 534, Decision No. 14,302).

While the district's original 2002-03 school year budget failed to disclose the total bond debt service cost as required, this flaw was identified in a financial audit and corrected.  In light of this disposition, I need not address the parties remaining contentions.