Decision No. 12,806

(September 15, 1992)

SOBOL, Commissioner.--Petitioner appeals from respondent board of education's expenditure of school district funds, while on an austerity budget, for the preparation of preliminary plans for a capital project. He further seeks action regarding the alleged hiring of an uncertified teacher and conflicts of interest of board members. The appeal is dismissed.

The facilities planning committee of respondent school district met six times between October 18, 1988 and November 8, 1991 and developed plans regarding the future needs of the school district. At least seven meetings were scheduled between March 3 and March 12, 1992 regarding the plans to encourage community involvement. The district requested that anyone wishing to attend the meetings should advise the school district office of which meeting they planned to attend.

A vote on several propositions was held on March 24, 1992. Proposition 1 requested taxpayer approval for asbestos abatement at a cost of $495,385. Proposition 2 requested taxpayer approval for reconstruction and additions to school district buildings at a maximum cost of $9,645,460; for the relocation and construction of a bus garage at a maximum cost of $280,110; and for replacement furnishings and equipment for the high school at a maximum cost of $21,735. Proposition 3 requested taxpayer approval for the conversion of the heating and ventilating system for the primary school building from electric to natural gas at a maximum cost of $357,000. Propositions 1 and 3 passed and proposition 2 failed. Petitioner asserts that there were various violations of the Open Meetings Law regarding the facilities planning committee meetings. He also contends that board president David Emerson violated the board's ethics code and the General Municipal Law. Mr. Emerson is president and owner of more than 5% of the stock of the Blue Ox Corp, a company which, since 1985, has contracted with respondent for the sale of fuel oil. Petitioner further contends that respondent hired an uncertified teacher, Dennis Carey, to coach the girls' 8th grade basketball team. Finally, petitioner asserts that there was an impropriety regarding the leasing of a car. Petitioner demands the Commissioner audit respondent's books for improper payment to uncertified teachers, improper leasing of cars and for misuse of funds while on an austerity budget.

Respondent defends on the ground that the appeal is untimely. Respondent further contends that there were no violations of the Open Meetings Law, and in any event, such violations are outside the jurisdiction of the Commissioner. Respondent asserts that there are no conflicts of interest of any board members. Concerning the appointment of an uncertified teacher, respondent contends that it complied with all requirements for obtaining a coaching license for Mr. Dennis Carey. As to the leasing of the car, respondent contends that any noncompliance was rectified.

With respect to respondent's procedural defenses, an appeal must be instituted within 30 days from the making of the decision or the performance of the act complained of, although I may excuse the failure to commence a timely appeal for good cause shown in the petition (8 NYCRR 275.16). In this instance, the alleged unauthorized expenditure of funds for architect's plans and specifications occurred prior to October 1991, and this appeal was served March 9, 1992. Regarding the alleged improper leasing of a car in violation of Education Law '1725, the lease was entered into on August 22, 1991. Although the lease extends to June 30, 1992, the time to bring an appeal is determined by the date the alleged misconduct occurred (Appeal of Verity, 31 Ed Dept Rep 485; Appeal of Ruffino and Wilber, 31 id. 183). Furthermore, I find no unusual circumstances to excuse the delay in this case. Accordingly, these aspects of the appeal must be dismissed as untimely (Appeal of Heinz, 31 Ed Dept Rep 326).

Concerning petitioner's assertions that expenditures regarding proposition 2 were inappropriate, I will decide only 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 Langenmayr, 30 Ed Dept Rep 322; Appeal of Vachon, 28 id. 276; Matter of Rondot, 27 id. 143). Because proposition 2 was defeated by the electorate, it is unnecessary for me to address this issue and that claim must be dismissed.

Even if the appeal was not procedurally defective, it would be dismissed on the merits. One of petitioner's assertions is that the cost for preliminary plans should not have been incurred while the district was operating under an austerity budget. The cost of preparing preliminary plans and specifications, which would enable the voters to determine intelligently whether to approve a capital project, is an ordinary contingent expense (Formal Opinion of Counsel No. 213, 7 Ed Dept Rep 153). Therefore, this was an appropriate expenditure of school district funds and that aspect of the appeal must be dismissed.

Concerning petitioner's assertion that an uncertified teacher was hired to coach 8th grade basketball, in an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Verity, supra; Appeal of Singh, 30 Ed Dept Rep 284; Appeal of Pickreign, 28 id. 163; Matter of Keiling, 25 id. 122.) The record reflects that respondent met the requirements of 8 NYCRR 135.4(c)(7)(i)(c)(3) and the coach at issue, Mr. Carey, was granted a temporary coaching license with an effective date prior to taking the position as coach.

Concerning petitioner's assertions that respondents violated the Open Meetings Law by holding meetings which community members could not attend or were allegedly asked to make an appointment to attend, I must dismiss it for lack of jurisdiction. The appropriate forum for addressing a violation of the Open Meetings Law is the Supreme Court of the State of New York (Application of Eisner, 31 Ed Dept Rep 517; Appeal of Strober, 30 Ed Dept Rep 4).

I have reviewed petitioner's other claims and find them without merit.

Although I have dismissed this appeal, I must take judicial notice of the fact that David Emerson, Board President is also President and owner of more than 5% of the stock of the Blue Ox Corporation. This corporation has contracted with respondent district since 1985 for the sale of fuel oil. General Municipal Law '801 prohibits a municipal officer from having an interest in any contract with the municipality of which he is an officer. General Municipal Law '802 lists the only exceptions. The record does not reflect that this contract fits into any exception. Although respondent asserts that David Emerson disclosed his interest pursuant to General Municipal Law '803, disclosure of such interest in no way cures a defect. If respondent was heretofore unaware of this violation, then respondent is now on notice. The continuation of such contracts may result in the removal of any board member engaged in this wilful violation of the law.

THE APPEAL IS DISMISSED.

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