Appeal of ROBERT HERLOSKI from action of the Board of Education of the Webster Central School District regarding budget documents.

Decision No. 15,014

(January 16, 2004)

 

Ferrara, Fiorenza, Larrison, Barrett & Reitz, PC, attorneys for respondent, Dennis T. Barrett, Esq., of counsel

 

MILLS, Commissioner.--Petitioner alleges that the Board of Education of the Webster Central School District (“respondent”) failed to comply with portions of the Commissioner’s regulations when adopting a school district budget for the 2003-2004 school year. The appeal must be sustained in part.

On March 8 and 27, 2003, the board conducted budget workshops open to the public, and at which slide presentations were made on the proposed budget it was considering for the 2003-2004 school year.

On May 7, petitioner wrote to the superintendent to point out certain provisions in §§170.8(d) and 170.9(a) of the Commissioner’s regulations requiring the disclosure of financial information which he believed was not properly provided in the budget process. After an exchange of correspondence, respondent held a public hearing on May 20, 2003, at which another slide presentation was made on the proposed budget.

Shortly after the budget hearing, the district mailed to all district residents a newsletter which was largely, but not entirely, devoted to the proposed budget. Also shortly after the budget hearing, petitioner requested from the district clerk additional materials, which the clerk apparently understood to mean the district report card and salary disclosure information that was distributed to the schools.

The district’s budget vote occurred on June 3, 2003. The result of the budget vote is not provided by either party, and is not at issue in this appeal. Petitioner commenced this appeal on June 11, 2003.

Petitioner argues that the slides shown at the March 8 and March 27 budget workshops, the slides shown at the May 20 hearing, the newsletter mailed shortly after May 20, and the materials he received from the district clerk on June 6 are all “budget documents” within the meaning of 8 NYCRR §§170.8 and 170.9, and fail to comply with those sections. Specifically, he alleges that the March 8, March 27, and June 6 documents do not include any information on the amount of fund balance to be retained, in violation of §170.9(a), and that the May 20 slides and the newsletter do not include the prior year’s data on the amount of fund balance retained, also in violation of §170.9(a). He further alleges that these materials all fail to include “the supplementary schedule to the capital component displaying total outstanding bond and note principal for capital purposes as well as base cost per square foot, the operation and maintenance per square foot, and the total cost per square foot for each facility leased by the district,” as required by §170.8(d).

Respondent argues that the challenges to the March 8 and March 27 workshops and slides are untimely, because petitioner did not commence this appeal within 30 days after those budget sessions. With respect to the May 20 slides, respondent acknowledges that they and other materials were made available at the budget hearing, but presents its own documents that it says were distributed to board members at the hearing, were available to members of the public at the hearing, and constitute the true “budget documents” and supplementary materials that are required by statute and regulation. It further states that these documents were distributed to each school building in the district, and that copies were available upon request to residents within the district, all as prescribed by statute and regulation. Respondent further argues that the newsletter distributed shortly after May 20 is not a budget document within the meaning of the regulations. It further points out that the materials received by petitioner from the district clerk on June 6 were not intended to be the complete budget documents, and denies that petitioner ever asked for them.

Petitioner’s challenges to the March 8 and March 27 slide presentations are untimely. Because petitioner has not challenged the outcome of the budget vote, claims regarding actions that occurred more than 30 days before his appeal was commenced are untimely (8 NYCRR §275.16; Appeals of Tesser and Kavitsky, 42 Ed Dept Rep ___, Decision No. 14,876; Appeal of Carroll, et al., 42 id. ___, Decision No. 14,871).

I find that the slides shown by overhead projector at the budget hearing of May 20 are not budget documents within the meaning of §170.9(a). That section provides, in pertinent part:

. . . budget documents prepared . . . for distribution to the public in connection with annual district meetings, budget hearings, and budget elections shall be written in plain language and organized in a manner which best promotes public comprehension of the contents. The documents shall be complete and accurate and contain sufficient detail to adequately inform the public regarding estimated revenues, proposed expenditures, transfers to other funds, the amount of fund balance be retained and the amount of fund balance to be used in support of budgetary appropriations as well as a comparison to the prior year’s data.

This language pertains to the proposed budget itself, and other documents required by Education Law §1716, which are made available to the public prior to a budget hearing, at the budget hearing, and prior to the vote on the budget. The slides shown at the May 20 budget hearing were merely an illustrative tool; they were not required by §1716 and were not prepared for distribution to the public. Indeed, the slides are no more budget documents than the words and commentary that were spoken at the budget hearing.

I also find that the newsletter published after the budget hearing is not a “budget document” within the meaning of §170.9(a). It is well established that a board of education has both the power and duty to inform district voters about important budget issues (See Appeal of Goldin, 39 Ed Dept Rep 323, Decision No. 14,250, petition to review disms’d; Matter of Gersen v. Mills, 290 AD2d 839). A district newsletter may be used for such purposes (See Appeal of Pucci, 31 Ed Dept Rep 3, Decision No. 12,546; Appeal of Loriz, 27 id. 376, Decision No. 11,981).

It is petitioner’s position that the newsletter is an incomplete budget document because it does not include the prior year’s data on fund balance retained, it fails to include the supplementary schedule required by §170.8(d), and it is a “district-wide mailing” (citing Education Law §305[26]). It appears to be petitioner’s position that any document mailed to district voters related to the proposed budget must contain a complete proposed budget. However, there is no requirement that a board of education mail copies of a proposed budget to anyone (Appeal of Chernish and DeRidder, 39 Ed Dept Rep 204, Decision No. 14,215). As I noted in Chernish, the Legislature has established the statutory procedure for making a proposed budget available to district residents, and that method does not require mailing of a complete proposed budget to each district resident. From the statutory provisions, it is clear that if a voter wants a complete, official copy of the proposed budget, he must make a request for it (Education Law §1716[2]). If I accepted petitioner’s logic, a district could not even reference the word “budget” in a newsletter without publishing the entire proposed budget, nor could it send out a simple postcard reminding voters of the date and time of the budget vote without doing the same.

With respect to the documents petitioner received from the district clerk, petitioner concedes in his reply that it is “substantially immaterial to this appeal” whether the clerk delivered some or all of the district’s budget documents because the documents do not satisfy §170.9(a) of the Commissioner’s regulations, requiring a comparison to prior year’s data of the fund balance retained to be stated therein. On this point, I must agree with petitioner.

In answer to this claim, respondent points out in its memorandum of law that on page 8 of its budget documents, the unappropriated fund balance for 2003-2004 is stated not to exceed two percent (2%), followed by the figure $2,050,713 (i.e., 2% of $102,535,674, the total expenditures for 2003-2004). The memorandum goes on to say: “This is in accordance with statute and, given that the total 2002-03 expenditures of some $98 million are also listed, the District has advised the public that the retained fund balance for that prior year was slightly under $2 million.” Apparently, respondent expects voters to know or to assume that 2% of the prior year’s total budget (2% of $98,088,413, or $1,961,768) has been retained for 2002-2003. While respondent claims that this constitutes substantial compliance, I agree with petitioner that this information should have been shown clearly to comply with §170.9(a).

Finally, I find that the budget documents provided by respondent in this appeal, and which were made available to the public, include the supplemental schedule of information regarding capital projects as required by §170.8(d) of the Commissioner’s regulations.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that in future respondent comply with all requirements of Education Law §1716 and Commissioner’s Regulations §§170.8(d) and 170.9(a).

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