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Decision No. 13,492

Appeal of ELAINE NOLAN, AUDREY COOPER, MARIE DEVLIN & ANTHONY CAPPA from action of the Board of Education of the Hempstead Union Free School District regarding the adoption of a contingency budget and other alleged improprieties.

Decision No. 13,492

(October 23, 1995)

Berkman, Henoch, Peterson & Peddy, P.C., attorneys for respondent, Gilbert Henoch, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal respondent's actions concerning the adoption of a contingency budget, alleged conflicts of interest, hiring policies and various other issues. The appeal must be sustained in part.

Hempstead School District No. 1 was created by a Special Act of the Legislature in 1863, which was recodified as Chapter 273 of the Laws of 1939. The district has, for many years, been treated as a union free school district and the provisions of the Education Law governing union free school districts have applied to respondent so long as they are not inconsistent with the special act creating the school district (See, Cappa v. Hempstead School District, Sup Ct. Nassau Co., August 9, 1993). Petitioners are residents of the district.

On September 8, 1994, respondent adopted a contingency budget and authorized the expenditure of other appropriations that were approved by the voters to fund summer school, extra and co-curricular activities, interscholastic sports and field trips. On January 19, 1995, respondent adopted a resolution authorizing the hiring of Media Professionals Public Relations, Inc. at an annual fee of $25,000. This appeal ensued. Petitioners' request for interim relief pending a determination on the merits of the appeal was denied on February 17, 1995.

Petitioners allege various improprieties against respondent, including a failure to release testing information, violations of the Freedom of Information Law and Open Meetings Law, alleged conflicts of interest, improper hiring practices and adoption of the contingency budget. Petitioners also allege that the hiring of a public relations firm is not an ordinary contingent expense. Respondent contends that it properly adopted a contingency budget and did not commit the improprieties alleged by petitioner. Respondent further contends that its proposed expenditure to hire a public relations firm is proper under a contingency budget.

Petitioners appear to claim that respondent is not permitted to adopt a contingency budget under the special act that created the district. They cite '505.0 of the Nassau County Civil Divisions Act which provides:

Levy of tax. Such board of education is hereby authorized and directed to levy and collect by tax in each year, upon all the property in such district subject to taxation, such sums as may be necessary but not in excess of the amount previously authorized by vote of the qualified electors at a district meeting, on the value of such property subject to taxation, as the same shall be assessed by the county board of assessors.

This section merely authorizes the collection of taxes and limits that amount to what was previously authorized by the voters. It does not prohibit the board's adoption of a contingency budget. Absent any prohibition in the special act, respondent is authorized to adopt a contingency budget consistent with Education Law '2023, which provides:

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.

My review of the record indicates that when voters failed to adopt a budget, respondent properly adopted a contingency budget. Petitioners' theory that the special act creating the district prohibits the adoption of a contingency budget is incorrect. That claim, therefore, must be dismissed. However, I note that the language of the special act cited above limits the amount of the contingency budget to that previously authorized by the voters.

Petitioners also challenge respondent's hiring of a public relations firm under a contingency budget. The responsibility for determining what constitutes an ordinary contingent expense lies in the first instance with the board of education. However, under Education Law '2024, any question concerning a board's determination of such an expense may be referred to the Commissioner of Education for determination. The general standard by which contingent budget determinations are judged is that an expense may be considered contingent if there is a legal obligation of the district or if it is necessary to maintain the educational program, preserve property or assure the health and safety of the students or staff (Formal Opinion of Counsel No. 213, 7 Ed Dept Rep 153).

Petitioners assert that a contract to hire a public relations firm to assist the district in promoting its image to district residents is not an ordinary contingent expense. Respondent argues that Formal Opinion of Counsel No. 213, 7 Ed Dept Rep 153, permits "expenditures necessary to advise district voters concerning school matters" and that its hiring of a public relations firm is thus an ordinary contingent expense. The record indicates that a contract between respondent and the public relations firm has been approved but has not been executed, and the terms of the agreement would include informing the voters and residents on issues and concerns relating to the district, including a district newsletter.

I disagree with respondent's determination that the hiring of a public relations firm is an ordinary contingent expense. The cost of the proposed contract with a public relations firm is not an expenditure necessary to advise district voters concerning school matters since existing district personnel and communication mechanisms could adequately perform this function for the district. Examples of necessary expenditures which are properly considered ordinary contingent expenses include teachers' salaries (Appeal of Seerup, 33 Ed Dept Rep 585), the replacement of a roof on a school building (Appeal of Ryman, 29 Ed Dept Rep 74) and obligations due to the New York State Retirement System (Matter of Wozniak, 9 Ed Dept Rep 120). Furthermore, the expense associated with the proposed use of the public relations firm in this case is not an appropriate legal obligation, authorized by statute or necessary to maintain the educational program, preserve property or assure the health and safety of the students or staff of the school district (Formal Opinion of Counsel No. 213, 7 Ed Dept Rep 153). Therefore, I find that the services of the public relations firm does not constitute an ordinary contingent expense and is not permissible.

Petitioners lack standing to challenge respondent's decision to fire the former high school principal. Neither petitioners' status as residents of the district nor as parents of students in the district confer the capacity to seek judicial review of the actions of the board of education with respect to its employees (Appeal of Reed, et al., 33 Ed Dept Rep 216; Appeal of Pecorale, et al., 31 id. 493; Appeal of Strober, 30 id. 4). Rather, the former principal would have standing to challenge this action, as she was the person aggrieved by the board's action. Respondent's answer asserts that the former principal has brought an action against the district (Williams v. Hempstead Union Free School District, Index No. 94-034532 [Sup. Ct. Nassau Co.]).

Petitioners also raise serious allegations concerning the hiring practices of respondent. However, other than bare allegations, petitioners fail to offer proof of the practices they describe (8 NYCRR '275.10; Appeal of Brassard, 33 Ed Dept Rep 497; Appeal of Lovascio 31 id. 75; Appeal of Singh, 30 id. 284). However, petitioners' assertion that the acting high school principal is also serving as a board member of the Town of Hempstead is troubling. While this dual service may not technically create an incompatibility of office (O'Malley v. Macejka, 44 NY2d 530 (1978); People ex rel. Ryan v. Green, 58 NY 295 [1874]), petitioners have raised valid concerns relating to the potential for tension between the duties of a principal and that of a town board member when competing responsibilities and time demands arise. I, therefore, urge respondent to carefully monitor this situation to insure that the acting high school principal's service on the town board doesn't undermine his ability to properly carry out his responsibilities to the school district.

Petitioners also allege that an incompatibility of office exists because respondent's board president serves on the Village Board of Zoning Appeals. My review of the record and applicable decisions in this area indicate that there is no inherent conflict of interest in the holding of these two offices by the same person (Op. Atty. Gen. 91-59; Op. Atty. Gen. 81-17).

Concerning petitioners' assertion that respondent violated the Freedom of Information Law and the Open Meetings Law, I lack jurisdiction to decide those claims. The appropriate forum for addressing a violation of the Freedom of Information Law or the Open Meetings Law is the Supreme Court of the State of New York (Appeal of Golden, 32 Ed Dept Rep 202; Application of Eisner, 31 id. 517).

I have reviewed the parties' remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the Board of Education of the Hempstead Union Free School District be enjoined from making any expenditure of funds as an ordinary contingent expense to enter into a contract with Media Professionals Public Relations, Inc.

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