Appeal of BORIS F. GRIB from action of the Board of Education of the Center Moriches Union Free School District regarding a budget vote.

Decision No. 15369

(March 6, 2006)

Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, of counsel

MILLS, Commissioner.--Petitioner challenges the sufficiency of certain information disseminated by the Board of Education of the Center Moriches Union Free School District ("respondent") in advance of an annual budget vote. The appeal must be dismissed.

On May 18, 2004, respondent held its 2004-2005 budget vote. The budget passed by a vote of 584 to 539. Almost 10 months later, petitioner commenced this appeal challenging the election results. Petitioner's request for interim relief was denied on March 3, 2005.

Petitioner alleges that respondent's Real Property Tax Report Card ("report card") did not comply with Education Law �1716(7)(a) because it did not include the total estimated school tax levy that would result from adoption of the proposed budget and the percentage increase or decrease in total school tax levy from the school district budget for the preceding school year. Petitioner alleges that respondent's submission to the New York State Education Department was therefore inadequate. Petitioner argues that these alleged deficiencies invalidate respondent's 2004-2005 budget vote.

For relief, petitioner requests that respondent conduct a new budget vote for the 2004-2005 school year. Petitioner also requests that the implied contingency budget for the 2005-2006 school year be based on the 2003-2004 budget rather than the 2004-2005 budget. Finally, petitioner requests that I investigate the "feasibility" of refunding school taxes paid in accordance with the 2004-2005 tax levy.

Respondent alleges that at the time the report card was published, questions regarding the anticipated amount of state aid and other information required to project the tax levy had not been received, and it would not be appropriate to provide a "guesstimate" tax levy. Respondent alleges that it acted lawfully in connection with the 2004-2005 budget vote and provided sufficient information to voters concerning the budget increase. Respondent also contends that petitioner failed to overcome the presumption of regularity of the budget vote. Finally, respondent alleges that petitioner has failed to meet his burden of proof and that the petition is untimely.

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). Petitioner did not commence this appeal until March 10, 2005, almost 10 full months after the May 18, 2004 annual budget vote. Petitioner argues that the actual effect of respondent's violations of law was not apparent to voters until December 2004. He also argues that respondent's actions would continue to affect voters until their 2004-2005 tax bills were fully paid, and into the 2005-2006 school year in the event of a contingency budget.

The fact that certain information was missing from respondent's report card should have been apparent to petitioner at the time the report card was published and made available to the public on April 28, 2004. Moreover, petitioner's assertion that respondent's conduct constitutes a continuing wrong is without merit. The continuing wrong doctrine applies when the ongoing action is itself an unlawful action (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 506, Decision No 12,901; Appeal of Aareseth, 32 id. 506, Decision No. 12,901). The doctrine does not apply where, as here, the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (see, Appeals of Simpson, et al., 40 Ed Dept Rep 5, Decision No. 14,402). Accordingly, I find no basis to excuse petitioner's lengthy delay and the appeal must be dismissed.

While the appeal is dismissed on procedural grounds, I note that Education Law �1716(7)(a) requires that a district's report card contain the total estimated school tax levy that would result from adoption of the proposed budget, and the percentage increase or decrease in total school tax levy from the school district budget for the preceding school year. Accordingly, respondent is reminded of the need to fully comply with all aspects of �1716 in the future.

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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