Appeal of JOSEPH F. CHALOUPKA from action of the Board of Education of the Plainedge Union Free School District regarding budget documents and budget votes.

Decision No. 15,367

(February 23, 2006)

Ingerman Smith, LLP, attorneys for respondent, Warren H. Richmond, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the accuracy of certain budget documents presented to the public by the Board of Education of the Plainedge Union Free School District ("respondent"). The appeal must be dismissed.

On May 17, 2005 voters rejected respondent's proposed budget for the 2005-2006 school year. The record indicates that respondent submitted the same budget for a re-vote on June 20, 2005. At the June special meeting, the budget was again defeated. Respondent subsequently adopted a contingency budget.

Petitioner contends that respondent provided false information to the public before both budget votes. Although it is not entirely clear from the record, petitioner appears to ask that I nullify both budget votes and order a re-vote. He further seeks, among other things, an audit of the information respondent provided to the public in both budget votes as compared to the contingency budget and that any inconsistencies be reported to the public.

Respondent asserts that the appeal is untimely, moot and that the relief requested is not available in an appeal to the Commissioner. Respondent maintains that it made every effort to present clear and accurate budget information to the public and in no way engaged in any misrepresentation or misstatement of budget figures.

The appeal must be dismissed as 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). According to the record, the petition was not properly served on respondent until August 15, 2005 - more than 30 days after both budget votes and respondent's conduct in relation to those votes. Petitioner's claim that his appeal is timely because he learned of the alleged errors at a July 13, 2005 board meeting on the contingency budget is equally unavailing, as the petition was not properly served within 30 days of that date. In so finding, I reject petitioner's assertion that his delay should be excused because respondent's administrative office was closed on August 12, 2005. Petitioner had available a number of options to effectuate timely service, including service on any member of the board of education, and he did not avail himself of these options (see 8 NYCRR �275.8[a]).

In light of this disposition, I need not address the parties' remaining contentions or any other procedural or substantive issues.

THE APPEAL IS DISMISSED.

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