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Decision No. 15,382

Appeal of JAY A. NICKERSON from action of the Board of Education of the Elba Central School District regarding a contingency budget.

Decision No. 15,382

(March 21, 2006)

Harris Beach, PLLC, attorneys for respondent, Alfred L. Streppa, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the 2005-2006 contingency budget adopted by the Board of Education of the Elba Central School District ("respondent"). The appeal must be dismissed.

On May 17, 2005, respondent held its annual district meeting and budget vote. Respondent placed before the voters two propositions and a proposed 2005-2006 budget of $8,872,679. The voters rejected the budget by a vote of 614 to 202. Thereafter, on June 13, 2005, respondent adopted a contingency budget pursuant to Education Law ��2022 and 2023, also appropriating $8,872,679.

Petitioner challenges the method by which respondent adopted the contingency budget, as well as the propriety of certain items in the budget. Although petitioner sets forth a number of allegations regarding respondent's presentation of the initial budget that was rejected by the voters on May 17, 2005, he does not seek to overturn the results of that vote.

Petitioner claims that respondent did not review any materials or engage in discussion or debate prior to adopting the 2005-2006 contingency budget. In essence, petitioner contends that respondent merely adopted the original proposed budget as its 2005-2006 contingency budget. Petitioner also asserts that respondent improperly established a reserve fund as part of the contingency budget, that such budget included non-contingent expenses and that respondent failed to comply with Education Law ��2022 and 2023. Petitioner seeks an order directing respondent to comply with those provisions of Education Law, to refrain from expending funds for non-contingent expenses and to comply with requirements of law regarding the creation of reserve funds.

Respondent denies petitioner's allegations and asserts that, although the total appropriation for the initial and contingency budget is the same, allocated expenses within each budget are different. Respondent maintains that the 2005-2006 contingency budget is in all respects proper.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). The burden is on the petitioner to allege and prove facts upon which relief can be granted, not on respondent to rebut conclusory allegations (Application of Wilson, 41 Ed Dept Rep 196, Decision No. 14,663).

I find that petitioner has failed to meet his burden of proof. Petitioner states in a general, conclusory fashion that respondent did not comply with Education Law ��2022 and 2023 in adopting the 2005-2006 contingency budget. However, petitioner fails to set forth such allegation with specificity or allege any facts in support of his claim, instead basing it upon information and belief. Similarly, petitioner asserts in a conclusory fashion that respondent included non-contingent expenses in the budget and improperly established a reserve fund. These claims also are alleged solely upon information and belief. The petition is devoid of any documentation in support of petitioner's claims. In its verified answer, respondent denies each of petitioner's allegations, and petitioner has not submitted a reply in response.

In view of petitioner's failure to meet his burden of proof on any of his claims, the appeal must be dismissed (seeAppeal of Polmanteer, et al., 44 Ed Dept Rep 221, Decision No. 15,155; Application of Wilson, 41 id. 196, Decision No. 14,663; Appeal of Chernish and DeRidder, 39 id. 204, Decision No. 14,215).