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Decision No. 13,326

Appeal of ROBERT HEBEL from action of the Board of Education of the New Paltz Central School District regarding approval of a budget.

Decision No. 13,326

(December 30, 1994)

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

SOBOL, Commissioner.--Petitioner, a resident of the New Paltz Central School District, appeals respondent's actions regarding its 1994-95 budget. The appeal must be sustained in part.

Neither party to this appeal has supplied a clear statement of the facts involved. However, it appears that respondent's proposed 1994-95 budget was rejected by the voters at the June annual meeting. At that time, respondent adopted a contingency budget and voted to present a proposition to the voters seeking approval for the expenditure of funds for various non-contingent expenses. That proposition included funds for items such as interscholastic sports, community use of school facilities, student field trips and non-mandated transportation. The proposition was rejected by the voters at a special meeting held on July 14, 1994. In response, respondent voted to present to the voters a new proposition regarding non-contingent expenses. The new proposition constituted a reduction in expenditures from the prior proposition. Amounts requested in a category were reduced, and certain categories were eliminated. This second proposition was approved by the voters on August 23, 1994.

Petitioner contends that the August 23 vote must be annulled because respondent improperly published the notice of that special vote. Specifically, petitioner alleges that respondent published the notice in only one newspaper rather than two newspapers, as required by Education Law ''2004 and 2007. Respondent admits that it published the notice of the special meeting in only one newspaper. It further admits that it only became aware of the requirement of publication of the notice in two newspapers five days before the election, when it was too late for respondent to correct the mistake. This mistake, however, is not a basis for overturning the election. Education Law '2010 provides that the results of an annual or special district meeting will not be held illegal for want of proper notice to the voters unless it appears that the failure to give such notice was willful and fraudulent. The record indicates that respondent's failure in this matter was neither willful nor fraudulent. Moreover, respondent apparently mailed and hand delivered a flyer regarding the election to households in the district. Accordingly, I will not overturn the election on this basis (Appeal of Tumilowicz, 32 Ed Dept Rep 414; Appeal of Maguire, et al., 31 id. 73; Appeal of Bayly, et al., 30 id. 442).

Petitioner contends that the flyer regarding the special meeting was misleading because it included "additional elements to be resolved which were not included in the actual ballot or published notice." Petitioner also asserts that the flyer improperly exhorted the voters to vote for the proposition. Petitioner's contentions are without merit. In Matter of Phillips v. Maurer, 67 NY2d 672, the Court of Appeals held that school district funds may not be used to exhort the electorate to support a particular position. However, a board of education may distribute factual information which describes the impact of a vote (Appeal of Ruiz, 32 Dept Rep 107; Appeal of Loriz, 27 id. 376; Appeal of Lewis, 13 id. 137). A review of the flyer indicates that it contains nothing substantially different from what was set forth on the actual ballot or in the published notice. Moreover, the flyer contains only factual information regarding the effects of the proposition. It does not contain a request to support the proposition or to vote for a particular outcome. Therefore, there is no basis to conclude that the distribution of the flyer was improper.

Petitioner also maintains that respondent acted unlawfully when it called for the August 23 special meeting because the voters had already voted on the issues at the prior annual meeting in June and at the first special meeting on July 14, 1994. However, pursuant to Education Law '2007, a board of education has discretion to call a special district meeting whenever it deems it necessary and proper (Galloway v. Saletan, 42 Misc 2d 458, aff'd 20 AD 2d 796; Matter of Mullen, 16 Ed Dept Rep 246; Matter of Andrews, 10 id. 65). Moreover, the special meeting in August was called to vote upon a proposition which differed from previous propositions in that it contained significant reductions in expenditures from those previously presented to the voters. Therefore, there is no evidence that respondent abused its discretion when it decided to convene a second special meeting to vote on the approval of non-contingent expenses.

Petitioner also contends that the proposition presented to the voters was improper because it linked several expenditures which could have been placed before the voters in separate propositions. However, whether to join one or more items in a proposition or present separate propositions to the voters is within the discretion of the board of education (Matter of Gang, 23 Ed Dept Rep 118). Accordingly, petitioner's contention on this issue is rejected.

Petitioner further contends that respondent has improperly funded interscholastic sports for the 1994-95 school year. As a general rule, the use of public funds for the maintenance of interscholastic sports, other than the cost of coaches' salaries, is not permissible without voter approval (Matter of O'Toole, 18 Ed Dept Rep 7). However, if all such non-contingent costs associated therewith are provided in advance from an outside source, as permitted by Education Law '1718(2), a board of education in its discretion may accept such outside funding and operate the program (Matter of Travers, 21 Ed Dept Rep 643). Petitioner notes that at the start of the school year respondent had not received all the donated funds necessary to operate its interscholastic athletics program for the year. However, a board of education is not required to have the entire non-contingent cost of all athletic programs for the full year on hand on the first day of the school year. A board of education must have full funding prior to the commencement of each season (Appeal of Farrell, 30 Ed Dept Rep 81). The record shows that at the time this appeal was commenced, respondent had sufficient funds on hand to operate its fall sports program. Accordingly, petitioner's allegations that such spending is unlawful is without merit.

Petitioner also maintains that in developing its contingency budget, respondent improperly included funds to cover anticipated salary increases for teachers. However, such anticipated expenses are properly included in a contingency budget (Education Law '2023; Formal Op of Counsel No. 213, 7 Ed Dept Rep 153; Matter of Powell, 22 id. 353).

Finally, petitioner contends that respondent has improperly included funds for field trips to a local land preserve in its contingency budget. Respondent admits that it has included such funds in its contingency budget, but maintains in conclusory fashion that the trips are an integral component of its elementary science curriculum.

Education Law '2023 provides that, in the absence of voter approval of a budget, a board of education may levy taxes and expend moneys only for teacher salaries and ordinary contingent expenses. Ordinary contingent expenses are those expenses which are either legal expenses; expenditures specifically authorized by statute; or items necessary to maintain the educational program, preserve property and assure the health and safety of students and staff of the school district (Matter of Cleveland Hill UFSD, 16 Ed Dept Rep 124; Formal Op of Counsel No. 213, supra).

As stated in Matter of North Syracuse CSD, 21 Ed Dept Rep 221, 222:

Expenditures for field trips have long been regarded as not constituting ordinary contingent expenses, and I must conclude that the board of education has acted improperly in including such an item in the budget in question. The Bureau of General Educational Management Services of the State Education Department, in its bulletin to school district officials on the topic of contingency budgets, specifically states that `field trips as enrichment of the instructional program are not considered an ordinary contingent expense.' I must conclude that North Syracuse is operating a program which falls within the general rule that expenditures for field trips require voter approval. An argument that field trips are meritorious should be addressed to the electorate, since it is only by approval of the qualified voters of the district that such trips may be paid for by the district.

Despite respondent's contentions that the trips are not field trips, but an essential part of its elementary school program, I find no basis in the record to support that assertion.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent Board of Education of the New Paltz Central School District delete any expenditure from the school district budget for the purpose of conducting field trips.

END OF FILE