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Decision No. 13,594

Appeal of ANTHONY J. SCARRONE from action of the Board of Education of the Wappingers Central School District, Peter Donnelly, Ved Shravah, Vincent Lordi, Edward Clay, and Robert Peterson regarding a contingency budget.

Appeal of JOHN TIERNEY from action of the Board of Education of the Wappingers Central School District, Peter Donnelly, Ved Shravah, Vincent Lordi, Edward Clay, Robert Petersen, and Thomas Diorio, as members of the Board of Education of the Wappingers Central School District, regarding a contingency budget.

Decision No. 13,594

(April 22, 1996)

MILLS, Commissioner.--Petitioners initiated separate appeals challenging respondents' decision to include the cost of interscholastic sports and co-curricular activities as a "contingency" expense in the Wappingers Central School District's budget for the 1995-96 school year. Because the appeals involve similar facts and issues, they are consolidated for decision. The appeals must be dismissed.

On May 17, 1995, respondent board presented to the voters of the district a proposed budget for the 1995-96 school year and five propositions, including a proposition for co-curricular activities and interscholastic sports in the amount of $993,455. The district voters rejected the proposed budget and all five propositions.

On July 24, 1995, respondent board adopted a resolution to include the cost of maintaining co-curricular activities and interscholastic sports in any contingency budget for the 1995-96 school year. On July 28, 1995, Acting Commissioner Thomas Sheldon issued an order directing that respondents show cause why a final order should not be issued (a) invalidating the July 24 resolution of the board on the ground that it was in violation of law; (b) removing the board members who supported the July 24 resolution from their offices; and (c) withholding from the Wappingers Central School District its share of public money of the State. Thereafter, on July 31, 1995, respondent board adopted a resolution to increase the operating spending plan for July, August and September 1995 by the amount necessary to begin the district's interscholastic sports program.

On August 25, 1995, respondent board presented district voters with another proposed budget which included money for co-curricular activities, intramural sports and interscholastic athletics. This proposed budget was also rejected by the voters. On that same day, respondent board adopted the following resolution:

WHEREAS the voters of the Wappingers Central School District have rejected a proposed budget which would have included funds for co-curricular activities, intramural sports and interscholastic athletics

BE IT RESOLVED that the resolution directing the Superintendent to prepare a contingency

budget including funds for interscholastic athletics, intramural sports and co-curricular activities is hereby rescinded in its entirety, and the Superintendent is hereby directed to forward immediately and discontinue any interscholastic athletic activities, intramural sports programs or co-curricular activities.

Subsequently, respondent board adopted a contingency budget which made no provision for co-curricular activities and interscholastic athletics. Thereafter, on September 14, 1995, district voters approved a proposition adding $800,000 to the contingency budget for interscholastic athletics and co-curricular activities.

Petitioner Anthony Scarrone requests that I declare respondent board's July 24, 1995 resolution invalid. Petitioner John Tierney requests that I declare respondent board's July 31, 1995 resolution invalid. Respondents did not answer either petition, although respondents submitted an answer to the Acting Commissioner's order to show cause.

Both appeals must be dismissed as moot. It is well settled that the Commissioner of Education will only determine matters which are in actual controversy and will not ordinarily render a decision upon a statement of facts which no longer exists or which subsequent events have laid to rest (Appeal of Kline, 35 Ed Dept Rep 91; Appeal of Evans, 33 id. 572; Appeal of Chrisfield, 33 id. 463). The record indicates that on August 25, 1995 respondent board rescinded its July 24, 1995 resolution. Accordingly, the resolution which is the basis for petitioner Scarrone's appeal no longer exists and his claims are thus moot.

Furthermore, the record indicates that respondent board eventually adopted a contingency budget which did not provide for co-curricular activities and interscholastic athletics. In addition, on September 14, 1995, the voters approved a proposition adding $800,000 to the contingency budget for interscholastic athletics and co-curricular activities. Accordingly, petitioner Tierney's complaint regarding the July 31, 1995 resolution is no longer in controversy and his appeal must be dismissed as moot.

In view of the foregoing disposition, I will not address the merits of petitioners' claims. However, because of the confusion generated in the community by respondents' actions, I am compelled to comment. The Commissioner of Education has repeatedly held that costs associated with interscholastic sports are not ordinary contingency expenses (Appeal of Farrell, 30 Ed Dept Rep 81; Matter of Travers, 21 id. 643; Matter of O'Toole, 18 id. 7; and Matter of Bd. of Educ., Cleveland Hill UFSD, 16 id. 124). Respondents are therefore admonished to comply with the decisions of the Commissioner in the future. Although it appears that respondents acted in part on the advice of their former counsel, I remind respondents that such advice does not necessarily shield a board member from removal under Education Law '306 where the advice is in direct contravention of well-settled law.

THE APPEALS ARE DISMISSED.

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