Appeal of GEORGE R. HUBBARD from action of the Board of Education of the Greece Central School District and Superintendent Steven Achramovitch regarding the expenditure of funds.

Decision No. 15,730

(March 7, 2008)

Harter Secrest & Emery LLP, attorneys for respondents, Bethany A. Centrone, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the actions of the Board of Education of the Greece Central School District (“board”) and its superintendent (collectively referred to as “respondents”) in authorizing certain expenditures from the district’s 2006-2007 budget.  The appeal must be dismissed.

On March 14, 2006, the then interim superintendent presented the district’s proposed budget for the 2006-2007 school year to the board at a public meeting.  On May 16, 2006, the voters approved the budget of $179.9 million.  In September 2006, the district began the application and approval process with the State Education Department (“SED”) for the “Barnard Fitness Center Project” (“Fitness Center”).  SED approved the Fitness Center on May 15, 2007.  On June 26, 2007, the board approved a bid authorizing construction to begin on the Fitness Center.  This appeal ensued.

Petitioner contends that the board unlawfully expended funds from the 2006-2007 budget when it approved the construction bid for the Fitness Center because it failed to properly identify or appropriate funds specifically for that purpose.  He also claims that the voters never approved or authorized funds to be used for the Fitness Center.  Petitioner requests that I instruct the board and the superintendent not to expend public funds that have not been identified for a specific purpose as a budget appropriation through a proper budget process.

Respondents contend that the appeal is untimely and fails to state a claim upon which relief can be granted.  Respondents assert that the funds for the Fitness Center were properly included in the budget, appropriated, and approved by the board and the voters.

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).  Respondents contend that the appeal is untimely because the district began taking action and expending funds related to the construction of the Fitness Center as early as September 13, 2006, when it submitted to SED a letter of intent for the Fitness Center.  However, petitioner objects to the expenditure of funds, which could not occur until the board approved the construction bid for the Fitness Center on June 26, 2007 (seeAppeal of Gargan, 40 Ed Dept Rep 465, Decision No. 14,528).  Since petitioner served his petition on July 26, 2007, within 30 days of the bid approval, I find the appeal to be timely.

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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

The evidence in the record contradicts petitioner’s allegations that respondents failed to include the proposed renovations for the Fitness Center in the 2006-2007 budget.  When the board approved the proposed budget of $179.9 million on April 4, 2006, it included $2.687 million to be transferred from the district’s Capital Fund for a list of projects, including “athletic room renovation (Barnard).”  The proposed budget was contained in the district’s “Budget Book” that was made available to district residents prior to the budget vote, which was then approved on May 16, 2006 (seeAppeals of Hubbard, 46 Ed Dept Rep 533, Decision No. 15,585).

In addition, proposed athletic room renovations were discussed at a March board meeting[1] when the phrase “fitness center” was used several times and interposed alternatively with “athletic room.”  Although the discussion focused more on whether Barnard was a viable facility at all, rather than on the merits of a fitness center perse, a fitness center was a topic of discussion.  Furthermore, the Fitness Center was discussed at several other meetings during the course of 2006-2007 according to respondents.  Also, prior to approving the bid authorizing construction at its June 26, 2007 meeting, the board approved the State Environmental Quality Review (“SEQR”) determination on November 14, 2006 and on January 9, 2007 resolved that the alterations for the Fitness Center were Type II actions under SEQR.  Accordingly, based on the record before me, petitioner has failed to prove that the funds were not properly budgeted or approved.

THE APPEAL IS DISMISSED.

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