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Decision No. 12,640

Appeal of BERNARD M. MITZNER from action of the Board of Education of the Goshen Central School District relating to expenditure of school district funds.

Shaw & Silveira, attorneys for respondent, Garrett L. Silveira, Esq., of counsel

Decision No. 12,640

(January 27, 1992)

SOBOL, Commissioner.--Petitioner appeals from action of the Board of Education of the Goshen Central School District to spend school district funds for newspaper articles and district publications. Petitioner requests that I issue an order declaring that such expenditures are improper when the school district is operating under an "austerity" or contingency budget. The appeal must be sustained.

Petitioner is a resident of the Goshen Central School District. During the 1990-91 school year, respondent increased the frequency of its publication of the school district newsletter from the two to three editions published in past years to four editions. The newsletter is mailed to every known postal patron in the school district, approximately 5,000 recipients. Additionally, the district commenced weekly publication of paid newspaper articles in two local newspapers. According to respondent's answer, the cost of the articles ranges from $250 to $300 for both newspapers, the price varying with the length of the article placed.

Petitioner contends that the increased cost generated by these additional publications and newspaper articles is prohibited when a district is operating under an austerity or contingency budget. Petitioner argues that the publications in question are not expenditures which are necessary to advise district voters concerning school matters, but rather are intended to increase good will between district residents and the school district as part of a public relations program.

Respondent contends that the appeal is untimely on the ground that the challenged expenditures were begun several months ago, and that this appeal was commenced beyond the thirty-day time limitation established by the provisions of 8 NYCRR '275.16. Respondent further contends that the petition fails to state a claim upon which relief can be granted in that petitioner has not established that respondent has improperly expended public monies for purposes of school district public relations, and that expenditures to inform voters and residents of the district on issues and concerns relating to the school district are lawful and proper actions that are permissible when a school district is operating pursuant to an austerity budget.

Petitioner has submitted a reply that includes several additional newspaper articles, which were not published until after the original petition was filed. To the extent that the newspaper articles constitute a reply to respondent's affirmative defense that the appeal is untimely and that the articles being published are merely informational and are within the district's authority to publish under an austerity budget, they will be considered.

Respondent's argument that the appeal is untimely because it was not commenced within thirty days of the implementation of the expenditure program is without merit. If petitioner's contentions have merit, each instance upon which respondent incurs an expense that is not authorized under a contingency budget would constitute an improper act by respondent that could be challenged by a timely appeal. In this case, petitioner's appeal was commenced within thirty days of the appearance in the local newspaper of an article concerning the school district's cafeteria program, and as the reply reflects, similar articles have appeared in subsequent weeks' editions of the paper. I therefore find the appeal timely within the meaning of 8 NYCRR '275.16. I further find that the appeal states a claim since, based upon the record before me, it is clear that respondent is spending additional funds to publish its weekly newspaper articles.

Turning to the merits, it is clear that a board of education is authorized pursuant to '2023 of the Education Law to spend tax monies to pay for ordinary contingent expenses when its regular budget proposition is not approved by the voters. Section 2023 reads:

If the qualified voters shall neglect or refuse to vote the sum estimated necessary for teachers' salaries, after applying thereto the public school moneys, and other moneys received or to be received for that purpose, or if they shall neglect or refuse to vote the sum estimated necessary for ordinary contingent expenses, the sole trustee, board of trustees, or board of education may levy a tax for the same, in like manner as if the same had been voted by the qualified voters.

In 1967, Formal Opinion of Counsel No. 213 was issued to address a number of questions which had arisen concerning the meaning of the phrase "ordinary contingent expense" (7 Ed Dept Rep 153). In that opinion, Counsel advised school districts that among those expenditures that school districts were authorized to make were: "Expenditures necessary to advise district voters concerning school matters." The question presented by this appeal is whether the nature of the information contained in the newspaper articles published by respondent in local newspapers is a necessary expenditure within the meaning of the phrase used in that opinion. Petitioner has attached copies of various news articles as exhibits to his petition and reply. One article is entitled "Challenging Times for the Cafeteria" and discusses the operation of the school district's cafeteria program. Subsequent articles describe the school district's interscholastic athletic program and the buildings and grounds department of the school district. An article entitled "Education Then and Now" discusses some aspects of the evolution of responsibilities of school districts, comparing changes in society with concomitant changes in the requirements imposed on school systems. While I find nothing objectionable in any of the articles, in my view the expenditures made to place the articles are not those which may be considered ordinary contingent expenses. Although the articles are generally informational, there has been no showing by respondent that it was "necessary" for the school district to publish them in the newspaper and thereby incur an additional expense. Examples of instances in which it might be "necessary" for a school district to make expenditures to publish articles in newspapers would be those cases relating to the conduct of the annual meetings, votes on school matters, including propositions which the voters must decide, and other expenditures which are necessary to operation of the school district. I therefore must conclude that, based upon the record before me, the expenditures made for the newspaper articles in question are not ordinary contingent expenses.

There is no information in the record before me that establishes that respondent has incurred any substantial additional expense by virtue of the increased frequency of publication of the school newsletter, and I therefore do not reach that issue.

In view of the fact that the school year has passed, and in further view of the fact that I find no reason to believe that the school district willfully incurred these expenditures in knowing violation of the limitations imposed by a contingency budget, I find no reason to issue any order other than to declare the expenditures improper.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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