Decision No. 13,313

(December 16, 1994)

Judge & Duffy, Esqs., attorneys for respondent, Monica A. Duffy, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the publication by the Board of Education of the North Warren Central School District ("respondent") of its 1993-94 financial statement in a newspaper with offices outside of the school district. This appeal must be dismissed.

Petitioner is the publisher of the North Country Gazette (Gazette), which is currently the only newspaper published within the district. Respondent has published its annual financial statement in the Gazette from 1982 through 1993.

On August 15, 1994, respondent approved its 1993-94 annual financial statement. Two days later, respondent caused the publication of this financial statement in a newspaper published outside the district, but having general circulation within the district. Respondent maintains that the annual statement was not published in the Gazette because of its belief that the Gazette had ceased operations. The basis of this belief was an ad appearing in the July 25, 1994 issue of the Gazette that stated: "Notice: Due to lack of revenues, this is the final issue, for now." Respondent submits an article published in another newspaper as evidence of the Gazette's intention to cease publication. Petitioner submits no evidence to rebut respondent's claim regarding the publication of this ad. Petitioner, however, does submit evidence showing that the Gazette did continue publishing newspapers after July 25, 1994.

Education Law '1721 requires that a board of education cause to be published, during the months of July or August, a detailed account of all moneys received and expended. That account shall be published, "in at least one public newspaper, published in such district or, if one public newspaper is not published in such district, then in a public newspaper having general circulation within such district ..." (Education Law '1721). As a result, if a newspaper is published in a district, the financial statement must be published in that newspaper (11 Op. State Compt. 639). Nonetheless, respondent claims to have justifiably relied upon a belief that the Gazette was not in publication at the time the 1993-94 financial statement was published. Petitioner asserts that this reliance is unjustified.

Petitioner asserts that Education Law '1721 strictly required respondent to publish its annual financial statement in a newspaper actually publishing within the district, even in the face of reasonable evidence that no such newspaper existed. Petitioner's assertion is untenable. Respondent was entitled to rely upon the Gazette's own ad which advised that publication had ceased. Respondent was not required to undertake an investigation as to the truth of that information. Accordingly, as respondent reasonably complied with Education Law '1721, the appeal must be dismissed.

I have considered petitioner's remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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