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Decision No. 15,504

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

Decision No. 15,504

(December 22, 2006)

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

MILLS, Commissioner.--Petitioner challenges certain actions by the Board of Education of the Port Washington Union Free School District ("respondent") in its preparation of a projected contingency budget for the 2006-2007 school year.  The appeal must be dismissed.

Petitioner is a resident and taxpayer of the district and claims to be an officer of the Port Washington Educational Assembly ("Assembly"), which appears to be an unincorporated association.  He seeks to bring this appeal on behalf of himself, the Assembly, and the taxpayers of the district.

The petition recites a number of disagreements between petitioner and respondent with respect to calculation of various figures in respondent's projected contingency budgets both for the 2005-2006 school year, and for the current 2006-2007 school year.

Petitioner claims that respondent has taken "questionable, arbitrary and capricious actions" in calculating the projected 2006-07 contingency budget.  Petitioner contends that respondent improperly included interest on tax anticipation notes and principal and interest for certain energy conservation leases in the 2006-2007 contingency budget period; however, petitioner concedes that these errors were all corrected on April 25, 2006.  Petitioner further claims that respondent included certain expenditures related to damage to, or destruction of, a school building or school equipment, which were improper.  This error was likewise corrected on April 25, 2006, and was eliminated from the projected contingency budget calculation.

Petitioner alleges that on May 4, respondent increased its estimated cost for a small student enrollment increase by over $300,000, to $429,104.  Petitioner questions the fact that there was no adjustment at all for enrollment increases in the original projected contingency budget calculation made February 7, 2006; that on April 24, a calculation of $113,045 appeared; and that on May 4, that calculation increased again to $429,104.  Petitioner claims, based on materials requested and received from respondent, that this figure for a modest enrollment increase of either 16 or 26 students, depending on which document one relies upon, is greatly overstated, and that the increase was made to offset some of the reductions made on April 25.

Petitioner claims that the $429,104 figure was contrived by respondent to make the projected contingency budget appear to be substantially larger than it should have been, and that by doing so respondent misled the electorate.  Petitioner argues that when the difference between a projected contingency budget and the district's proposed budget is artificially reduced to a very small amount, voters who might otherwise oppose the proposed district budget would not bother to vote.  Petitioner asks that I declare that portion of respondent's projected contingency budget for the 2006-2007 school year to be invalid, and asks that I order any projected contingency budget calculations prepared for the 2007-2008 school year be reviewed by the State Education Department during the budget process.

Respondent claims that in all respects the 2006-2007 projected contingency budget was proper, and that petitioner's claims with respect to it are moot because the district’s proposed budget was passed by the voters, and because all errors claimed by petitioner were corrected prior to the budget vote.  It further points out that although one budget worksheet showed a projected increase of 16 students and another showed an increase of 26, there is no discrepancy.  Respondent states that the smaller number was derived from certain demographic projections, while additional factual information came to its attention indicating that 10 additional new students would be expected for the 2006-2007 school year.  Respondent further claims that its per pupil cost is $16,504, resulting in a calculated increase of $429,104, and that that figure is within the range calculated by petitioner.  Respondent further claims that petitioner seeks a declaratory judgment, and that there is no authority to order it to submit its projected contingency budget for the upcoming school year to the State Education Department for review or approval.  Finally, it argues that petitioner has no standing to represent either the Assembly or other taxpayers and maintains that petitioner's claims with respect to the 2005-2006 contingency budget are untimely.

     Petitioner may not maintain this appeal on behalf of district taxpayers.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Ockimey, 44 id. 169, Decision No. 15,136; Appeal of Garmaeva, 43 id. 253, Decision No. 14,988).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Garmaeva, 43 Ed Dept Rep 253, Decision No. 14,988; Appeal of Broardt, 42 id. 126, Decision No. 14,796).  Petitioner has failed to do either in this appeal.

Petitioner also may not maintain this appeal on behalf of the Assembly, which appears to be an unincorporated association of parents and residents of the district.  An unincorporated association lacks standing to maintain an appeal under Education Law §310 (Application of Simmons, 43 Ed Dept Rep 7, Decision No. 14,899; Appeal of D’Oronzio and D’Agostino, 41 id. 457, Decision No. 14,745).

     With respect to petitioner’s claims regarding the 2005-2006 contingency budget, I find that they are clearly untimely.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.). Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Darrow, 43 Ed Dept Rep 394, Decision No. 15,029; Appeal of Eckert, 40 id. 433, Decision No. 14,520).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (seeAppeal of Darrow, 43 Ed Dept Rep 394, Decision No. 15,029; Appeal of Stephen and Roseanne W., 39 id. 808, Decision No. 14,388).  This appeal was commenced on June 8, 2006, more than a year after the 2005-2006 contingency budget was prepared and petitioner offers no good reason for his delay in challenging that budget.

Petitioner's claims with respect to the 2006-2007 contingency budget must be dismissed as moot.   On May 16, 2006, district voters passed the proposed budget in the amount of $110,118,042.  At that point, the projected contingency budget of $108,250,394 ceased to be of any significance.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).

Even if petitioner's claims regarding the 2006-2007 contingency budget were not dismissed as moot, they would be dismissed on the merits.  While petitioner claims that respondent contrived to make the projected contingency budget larger than it should have been, he has not provided any evidence.  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).

Respondent denies all wrongdoing, and, in its answer, “alleges that the District properly carried out its fiduciary obligations by thoroughly investigating and addressing all issues and discrepancies related to its contingency budget, and that the District made appropriate adjustments to the contingency budget in a timely and forthright manner.”  Respondent has acknowledged its fiduciary duty to the school district, residents, and taxpayers to produce budgets that are fair and accurate pursuant to Education Law §§1716 and 2022.  I understand petitioner’s real concern that a board of education could manipulate the contents of a projected contingency budget to lead voters to believe that voting against a proposed budget would be largely futile and would not result in any significant reduction in expenditures, but I cannot conclude that happened here.

While the parties have differed, each party has consulted with expert staff of the State Education Department, which is entirely proper.  I encourage the parties to adopt a more cooperative attitude in the future.

Finally, there is no authority to require that respondent provide any future projected contingency budget calculations to the State Education Department for review or approval, and petitioner has cited no such authority.