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Decision No. 15,585

Appeals of GEORGE R. HUBBARD from action of the Board of Education of the Greece Central School District regarding budget resolutions, a budget proposition and a tax levy.

Decision No. 15,585

(May 16, 2007)

Harter, Secrest & Emery LLP, attorneys for respondent, Bethany A. Centrone, Esq., of counsel

MILLS, Commissioner.--In two separate appeals, petitioner challenges actions of the Board of Education of the Greece Central School District (“respondent”) regarding the district’s 2006-2007 budget, a proposition for the purchase of school buses and the district’s tax levy.  Because the appeals involve similar facts and common questions of law, they are consolidated for decision.  The appeals must be dismissed.

On April 4, 2006, respondent discussed the proposed budget for the 2006-2007 school year and a school bus purchase proposition (“Proposition 1”).  On May 9, 2006, respondent held a public hearing on the proposed budget.  On May 16, 2006, the voters approved the budget of $179,912,893 and Proposition 1 which authorized respondent to enter into an installment purchase contract for the acquisition of 25 buses at an estimated principal cost of $1,500,050 and stated that “a tax is hereby voted to pay the principal and interest on said installment contract as the same shall become due and payable.”  Petitioner commenced his first appeal on June 7, 2006.

     On August 8, 2006, respondent approved a tax levy of $91,856,666, for the 2006-2007 school year and on August 10, 2006, the district issued a tax warrant.  The tax levy and warrant were based upon the approved budget of $179,912,893, plus $385,000 for principal and interest on Proposition 1 for the 2006-2007 school year.  Petitioner commenced his second appeal on August 18, 2006, and his request for interim relief was denied on August 30, 2006.

Petitioner challenges actions taken by respondent at its April 4, May 9 and May 16, 2006 board meetings.  Petitioner claims that at the April 4, 2006 meeting, respondent’s resolutions approving the 2006-2007 budget and Proposition 1 were defective because they failed to state the specific amount of money required for said school year.  Petitioner further alleges that respondent improperly presented the budget and Proposition 1 to the voters at the public hearing and the annual meeting because neither had been adopted by a properly recorded resolution and vote.  Petitioner also argues that Proposition 1 was defective because it did not contain estimated interest charges for the installment purchase contract.  Petitioner asserts that the tax levy approved by respondent on August 8, 2006 was unlawful due to the alleged defects in the budget and Proposition 1 and that the tax levy was improperly calculated. 

Petitioner requests that I instruct respondent to prepare and document a proper budget and separate voter propositions in future years.  Petitioner also requests that I instruct respondent and its superintendent to prepare and authorize a new tax warrant reflecting the proper 2006-2007 tax levy.

Respondent asserts that the appeals are untimely and that petitioner has failed to state a claim upon which relief may be granted.  Respondent further contends that the appeal challenging the tax levy is moot.

I must first address several procedural matters.  The purpose of a reply is to respond to new material or affirmative defenses set forth 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 assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the replies, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answers.

By papers dated June 19, 2006, petitioner requested permission pursuant to §276.5 of the Commissioner’s regulations to submit the meeting minutes for respondent’s May 9, 2006 meeting which he alleges were not available when he filed his initial appeal.  Under these circumstances, I will accept petitioner’s submission.

Respondent contends that the appeals are untimely An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  In petitioner’s first appeal, commenced on June 7, 2006, he challenges actions taken by respondent during its April 4, May 9 and May 16, 2006 board meetings.  Petitioner offers no good cause for his delay in challenging actions that occurred more than 30 days prior to that date.  Therefore, the claims that challenge such actions on April 4, 2006 are dismissed as untimely.  However, to the extent that petitioner’s second appeal, commenced on August 18, 2006, challenges the tax levy approved on August 8, 2006, it is timely. 

Petitioner’s claims with respect to the tax levy are moot.  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 C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Respondent was required to issue its 2006-2007 tax warrant on or before September 1, 2006 (Real Property Tax Law §1306).  Because the 2006-2007 warrant for the tax levy has been issued, petitioner cannot obtain the relief sought (Appeal of Uy, 44 Ed Dept Rep 402, Decision No. 15,211).  The appeal, therefore, is moot. 

Petitioner’s claims concerning the May 16 budget vote must be dismissed on the merits.  Proposition 1 listed the principal costs for the installment purchase contract.  It also advised voters that interest would be paid on this purchase but it did not estimate the interest costs.  However, General Municipal Law §109-b does not require separate propositions for installment purchase contracts to estimate interest costs.  Furthermore, a school district cannot request bids for a purchase until it is approved by voters.  Therefore, respondent could not determine the interest costs for Proposition 1 prior to the budget vote.

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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329). 

The evidence in the record contradicts petitioner’s allegation that respondent failed to properly inform voters about Proposition 1.  The “budget book” for the 2006-2007 school year, which was available to voters prior to the election, stated the total amount of the proposed budget and set forth the purpose and principal cost of Proposition 1, as well as the fact that interest would be paid on the installment purchase contract.  The budget book also contained the estimated cost of the principal and interest that would be paid on the installment purchase contract during the 2006-2007 school year.  Proposition 1 itself contained the principal cost of the school bus purchase and stated that interest would be paid on the purchase.  Petitioner has also failed to establish by affidavits or other evidence that voters were confused by Proposition 1.  Thus, petitioner has failed to meet his burden of proof.

In light of this disposition, I need not address the parties’ remaining contentions.