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Decision No. 15,753

Appeal of KIRK RICHENBERG from action of the Board of Education of the York Central School District regarding a contingency budget.

Decision No. 15,753

(June 4, 2008)

David. W. Lippitt, Esq., attorney for respondent

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the York Central School District (“respondent” or “board”) to authorize a certain expenditure while the district was operating on a contingency budget.  The appeal must be dismissed.

On June 25, 2007, respondent approved a contingency budget for the 2007-2008 school year.  At a special board meeting on January 8, 2008, respondent accepted a $12,980 bid for the purchase of a John Deere HPX utility vehicle (“2008 vehicle”).  At its February 25, 2008 meeting, respondent accepted a $3,951.10 bid for the sale of a 2000 John Deere utility vehicle (“2000 vehicle”).  This appeal ensued.

Petitioner contends that the 2000 vehicle was in good working condition.  He requests that respondent be directed not to make expenditures for items that are not necessary for the health and safety of students, or for the operation and maintenance of district property while on a contingency budget.

Respondent asserts that the appeal must be dismissed as untimely.  In addition, the district’s business manager avers that the 2008 vehicle was necessary to maintain the district’s property and assure the health and safety of students and staff.

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).  Respondent approved the purchase of the 2008 vehicle on January 8, 2008.  Petitioner did not serve the petition until March 25, 2008, more than 30 days later.

Petitioner blames his delay in commencing the appeal on the fact that the acceptance of the bid for the sale of the 2000 vehicle did not occur until February 25, 2008, after the 30-day deadline for filing had passed.  However, petitioner objects to respondent’s purchase of a new vehicle while under a contingency budget, not to its sale of an old vehicle.  Consequently, the eventual disposition of the 2000 vehicle is irrelevant to the purchase, and has no bearing on the issue of timeliness.  Accordingly, the appeal must be dismissed as untimely.

Although the appeal is dismissed as untimely, I remind respondent that purchases are limited while operating under a contingency budget (seee.g. Education Law §2023 and Formal Opinion of Counsel No. 213, 7 Ed Dept Rep 153). Although a board of education is authorized to make emergency repairs, it does not generally have the authority to replace equipment when operating under a contingency budget (Appeal of Gorman, 39 Ed Dept Rep 377, Decision No. 14,265).  Without a compelling showing that an equipment purchase is necessary to maintain the educational program of the district, to preserve the property of the district, or to assure the health and safety of students and staff, such purchase would be prohibited under a contingency budget (Id.).

In light of this disposition, I need not address the remaining issues in this appeal.