Appeal of GEORGE R. HUBBARD from action of the Board of Education of the Greece Central School District regarding a budget hearing.

Decision No. 15,372

(March 6, 2006)

Harris Beach LLP, attorneys for respondent, Laura M. Purcell and James A. Spitz, Jr., Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals actions of the Board of Education of the Greece Central School District ("respondent") regarding a budget hearing. The appeal must be sustained in part.

Respondent scheduled a budget hearing for May 10, 2005, at 7:00 p.m., prior to its regularly scheduled board meeting. The district's website contained a notice inviting the public to attend the hearing and advised that those wishing to speak could begin signing up at 6:30 p.m. When it became apparent that many citizens wanted to address the board, respondent's president began taking comments at 6:50 p.m. The last speaker concluded at approximately 8:30 p.m., followed by the regular board meeting. In all, 31 people spoke, including an elementary school principal and the high school principal, who also serves as the president of the Greece Association of School Administrators ("GASA").

Petitioner contends that respondent did not hold a proper budget hearing because respondent allegedly did not properly call the event to order, declare it a "budget hearing," adopt an agenda or vote to close the event as a public hearing. Petitioner also contends that respondent failed to present any budget information at the event but merely allowed speakers to make comments about the budget. Petitioner also contends that some speakers spoke at the behest of district staff, and therefore district resources were improperly used to advocate in favor of the budget. Petitioner requests that I admonish respondent for failing to properly convene a public hearing on the proposed 2005-2006 budget and failing to present the proposed budget. He requests that I instruct respondent to be diligent in its future budget presentations.

Respondent argues that petitioner fails to state a claim upon which relief may be granted and fails to meet his burden of proof. However, the district's assistant superintendent of finance and administration states that the district was unaware of the requirement that it must present the budget at a budget hearing, and avers that it will implement this requirement for the 2006-2007 budget. Finally, respondent denies that public funds were used to advocate for the budget.

Education Law �1716 requires that each school district present its budget at an annual budget hearing to be held not less than seven or more than fourteen days before the budget vote. As respondent acknowledges, its process of providing an open forum for public comment on the budget does not fulfill the statutory requirement for a presentation of the budget. Respondent is reminded of the need to comply with the provisions of Education Law �1716 in the future. It appears that it already intends to do so for the upcoming budget.

To the extent that petitioner contends that district resources were used to advocate for the budget, he has failed to meet his burden of proof. A board of education may use public resources to present objective, factual information to the voters concerning a proposed annual budget (Education Law �1716; Appeal of Goldin, 40 Ed Dept Rep 628, Decision No. 14,572).  However, public resources cannot be used to "exhort the electorate to cast their ballots in support of a particular position advocated by the board" (Phillips v. Maurer, 67 NY2d 672), or to persuade, or convey favoritism, partisanship, partiality, approval or disapproval (Stern, et al. v. Kramarsky, et al., 84 Misc 2d 447). Here, the high school principal avers that she spoke at the budget hearing on her personal time in her capacity as GASA president and was not directed or requested to make an appearance or comments by any district official or board member.

Petitioner has failed to present any evidence that respondent used public resources to advocate for the budget by having the principal or any other citizen speak on its behalf. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). Accordingly, petitioner has failed to meet his burden regarding this claim.

I have considered petitioner's remaining contentions and find them to be without jurisdiction or merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent comply with all aspects of Education Law �1716 in the future.

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