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Decision No. 13,961

Appeal of EDWARD R. CLAY, JOSEPH INCORONATO, ANTONIO J. ANZEVINO, RICHARD P. BICKERTON, DOLORES CHECHEK, PETER DELUCA, TINA DELUCA, DEBORAH DIORIO, THOMAS DIORIO, KATHY DONNELLY, PETER DONNELLY, MARY FALZILLO, RALPH FALZILLO, DIONE GOLDIN, ERNEST M. HENZLER, JANET HENZLER, GEORGE KREPP, ROBERT LEWIS, V. A. LORDI, HUGH J. MAURER, MARISE RICHMAN, DIANA SCRIBNER, ANNE TEDALDI, JOHN TEDALDI, JAMES UNGER, JULIA UNGER, GILBERT UNGER, and FRIEDA WETSELBERGER from action of the Board of Education of the Wappingers Central School District and Wayne F. Gersen, Superintendent, regarding budget expenditures.

Michael Lambert, Esq., attorney for respondents

Decision No. 13,961

(June 15, 1998)

Mills, Commissioner.--Petitioners Edward Clay and Joseph Incoronato are members of the Board of Education of the Wappingers Central School District ("respondent" or "respondent board"). The other twenty-six petitioners are residents of the district. Petitioners appeal the action of respondent Wayne F. Gersen, Superintendent of the Wappingers Central School District ("respondent Gersen" or "superintendent") and respondent board regarding arrangements with a local cable television station to air a one-hour program, entitled "WCSD On The Air" during a contingency budget. The appeal must be dismissed.

On May 14, 1997, respondent held its annual meeting, election and budget vote for the 1997-1998 school year. A budget in the amount of $102,318,703 was defeated 4,335 to 3,226. Additionally, propositions for school bus replacement and instructional technology were also defeated. On June 2, 1997, respondent voted to adopt a contingency budget in the amount of $100,484,708, without presenting a revised budget to the public for a revote. Respondent also approved resolutions to present three propositions for a special vote to be held on June 25, 1997. All three propositions, for (1) bus replacement, (2) sports, co-curricular activities and field trips, and (3) business office upgrade and district-wide equipment, were defeated.

A proposition for sports, cocurricular activities and field trips was presented again on August 13, 1997, at which time it passed. Petitioners allege that several flagrant violations of the Education Law occurred during the August 13, 1997 vote and reference Appeal of Chechek (37 Ed Dept Rep _____, Decision #13,943, dated May 18, 1998) which challenged those alleged election irregularities.

On August 25, 1997, respondent established five ad hoc committees, including the Community Outreach/Resources Advisory Committee, whose mission was to "build bridges between the schools and the community at large and to increase public awareness of the positive accomplishments of the students and staff in the schools." On December 10, 1997, respondent Gersen notified respondent, principals, coordinators, and central office staff that he had made arrangements with a local cable television station to air a one-hour program, entitled "WCSD On The Air", every other week beginning January 1998 and continuing through the end of June 1998. In his memorandum, respondent Gersen stated that the primary purpose of the bi-weekly program was "to demonstrate to the public that their tax dollars are purchasing a quality education."

Petitioners allege that respondent Gersen exceeded his authority by undertaking this action without prior approval by respondent. Moreover, petitioners assert that the cost of producing a television show is not an ordinary contingent expense and is inappropriate while operating under a contingency budget. Additionally, they allege that each program necessitates an estimated 25 hours to plan, prepare, write, tape, edit and produce. Thus, approximately 325 hours would be spent on this activity through June 1998. Petitioners contend that the use of taxpayer dollars, school facilities, school children and school personnel for this program is improper under district policy and the Education Law. Petitioners request that: the production of the proposed television program be declared a non-contingency item; I require the district to retain only those employees necessary to perform duties specifically permitted under a contingency budget and lay off all others; and respondents be enjoined from expending or disbursing funds, including salaries, benefits, use of equipment or facilities, for the purpose of producing the proposed television programs. I denied petitioners’ request for interim relief on January 15, 1998.

Respondents state that petitioners have failed to meet their burden of proof, and the petition fails to state a claim. They assert that there is no cost to the district to prepare information for the broadcasts and there is no charge for the public access airtime. They assert that to the extent any cost is incurred, that cost would be the use of district staff involved in the videotaping and subsequent editing of the tape. Respondents contend that even if such involvement were to take place during school hours, it would be a contingent expense. However, respondent Gersen asserts that district staff is willing to volunteer time and energy to accomplish the mission of the Committee. Additionally, respondents state that the project is well within the superintendent’s authority. Respondent Gersen maintains that this project evolved as a means of fulfilling the mission of the ad hoc Community Outreach/Resources Advisory Committee.

I must first address several procedural matters. Respondents contend that petitioners’ reply is not responsive to respondents’ affirmative defenses and contains additional materials and arguments not contained in the petition. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Rampello, 37 Ed Dept Rep 153; Appeal of Lawson, 36 id. 450, Appeal of Brush, 34 id. 273). Therefore, I will not consider those portions of petitioners’ reply containing new allegations and material not responsive to new material or affirmative defenses set forth in the answer.

Petitioners contend that respondent Gersen lacked the authority to enter into an arrangement with the public access channel for the "WCSD On The Air" project without prior approval by respondent board. Respondents assert that the superintendent has such authority. Nevertheless, subsequent actions of the board have rendered that issue moot. On January 26, 1998, respondent board passed a resolution authorizing the Community Outreach Committee to broadcast "WCSD On The Air" as described in the superintendent’s December 10, 1997 memo. It is well settled that the Commissioner will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Lawson, supra; Appeal of McCart, et al., 36 Ed Dept Rep 363; Appeal of Ryan, et al., 35 id. 188). Accordingly, there is no need to determine the superintendent’s authority under the various board policies submitted with petitioners’ reply. To the extent petitioners challenge the superintendent’s authority on this issue, that portion of the appeal must be dismissed as moot.

In an appeal to the Commissioner, petitioners bear the burden of proving that they are entitled to the relief requested (8 NYCRR "275.10; Appeal of DiMicelli, 28 Ed Dept 327). After the budget failed to pass on May 14, 1997, respondent board adopted a contingency budget on June 2, 1997. 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. Since there are no monetary costs to the district in producing or airing "WCSD On The Air," the district has not improperly expended funds for non-contingent expenses while under a contingency budget. Petitioners argue that significant funds will be expended by the use of personnel, equipment, supplies and facilities used for the project. However, they fail to substantiate any such costs beyond mere speculation. Nor do they substantiate the estimated number of hours to work on the project. Petitioners also contend that there is "nothing in the documents or discussions about the [television] program that suggests that the staff will put in unpaid time for the production of these programs, nor has there been any statement that the various unions will permit its members to do so." However, it is incumbent upon petitioners to demonstrate that staff is actually participating in the project during paid school hours and actually incurring "costs." It is not incumbent upon respondents to prove that staff is actually volunteering. Petitioners have failed to meet their burden of proof. Furthermore, since there are no costs incurred, it is unnecessary to determine whether this program constitutes an ordinary contingent expense under Education Law "2023. It is well settled that the Commissioner does not issue declaratory rulings in appeals brought pursuant to Education Law "310 (Appeal of Lawson, supra; Appeal of McCart, et al., supra; Application of Marshall, et al., 33 id. 26; Appeal of Heizman, 31 id. 87).

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

THE APPEAL IS DISMISSED.

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