MILLS, Commissioner.--Petitioner challenges certain actions of the Board of Education of the Shoreham-Wading River Central School District ("respondent") in adopting a contingency budget for the 2000-01 school year. The appeal must be dismissed.

On May 16, 2000, respondent submitted a proposed budget to district voters, who rejected it. The proposed budget contained appropriations for interscholastic sports, including a junior varsity interscholastic sports program. On June 20, 2000, respondent adopted a contingency budget in accordance with Education Law ""2022 and 2023. The contingency budget reduced the appropriation for interscholastic sports, including, but not limited to, eliminating the junior varsity interscholastic sports program. On August 3, 2000, respondent submitted a revised proposed budget to district voters, who rejected it. The revised proposed budget contained appropriations for a junior varsity interscholastic sports program. Following the defeat of the second proposed budget, respondent continued to operate under the contingency budget adopted on June 20, 2000. Thereafter, respondent reexamined its interscholastic sports program and decided to reinstate the fall junior varsity interscholastic sports program by cutting expenditures in other areas of the contingency athletics budget. Respondent indicated that it planned to reexamine budget expenditures and gifts received later in the school year to determine whether it would have the funds necessary to operate a junior varsity interscholastic sports program in the winter and spring of 2001. This appeal ensued. Petitioner’s request for interim relief was denied on September 7, 2000.

Petitioner states that his son, Andrew, planned to participate in junior varsity sports and that the elimination of the program will cause Andrew’s athletic skills and academic performance to deteriorate. Petitioner argues that respondent violated Education Law "2023 by adopting a contingency budget with a reduced amount appropriated for interscholastic sports and extracurricular activities as compared to the amount appropriated within the initial proposed budget that was rejected by district voters. Moreover, petitioner alleges respondent refuses to accept gifts to restore interscholastic sports programs.

Petitioner seeks an order compelling respondent to appropriate funds in its contingency budget for interscholastic sports and extracurricular activities, including the restoration of the junior varsity interscholastic sports program, in an amount equal to the appropriation for the same contained within the initial proposed budget. Petitioner also seeks an order finding that respondent is authorized to accept gifts designated by donors to be applied to the appropriation for the junior varsity interscholastic sports program or to other appropriations even if such gifts would cause the total appropriations to exceed the statutory spending limits.

Respondent submits that the appeal is untimely. Respondent further contends that it acted legally and in good faith by reducing expenditures in the defeated budget in order to come within the statutory spending limits for a contingency budget. Respondent submits that the relief requested by petitioners would require a reduction in spending in academic programs, contrary to the best interests of its students. Respondent denies petitioner’s claim that it refuses to accept monetary gifts for the interscholastic sports program and has submitted the district policy on accepting gifts as an exhibit.

I will first address the procedural defense of timeliness raised by respondent. An appeal to the Commissioner pursuant to Education Law "310 must be commenced within 30 days of the action complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner commenced this appeal on August 28, 2000 and claims that respondent’s final decision on the reductions was not made until a public meeting held on August 15, 2000. Respondent argues that its final decision on the reductions occurred on June 20, 2000 when it adopted a contingency budget. The record indicates that after adopting a contingency budget, respondent submitted a revised proposed budget to district voters that included appropriations for a junior varsity interscholastic sports program. In addition, on August 15, 2000, respondent asked its administration to try to find funds to restore junior varsity sports in the contingency budget. At a meeting held on August 30, 2000, respondent reexamined the issue of interscholastic sports and decided to reinstate the fall junior varsity program by cutting expenditures in other areas of the contingency athletics budget. The board further indicated that it planned to reexamine the budget and gifts received to determine whether it would operate a junior varsity interscholastic sports program in the winter and spring of 2001. In view of the fact that respondent continued to make modifications to the district's budget through August 2000 after initially adopting a contingency budget on June 20, 2000, I will not dismiss the appeal as untimely (Appeal of Franchese, 39 Ed Dept Rep 285, Decision No. 14,239).

Turning to the merits, in an appeal to the Commissioner of Education, petitioner bears the burden of establishing a clear right to the relief requested (Appeal of Leman, 39 Ed Dept Rep 35, Decision No. 14,166; Appeal of Shabazz, 38 id. 481, Decision No. 14,076; Appeal of Holzer, 37 id. 549, Decision No. 13,924) and petitioner has failed to sustain that burden. The determination as to whether to conduct an interscholastic sports program lies within the authority and discretion of the board of education, as does the manner in which any such program is to be conducted. While such programs may be beneficial to students within a school district, a board of education is not legally obligated to offer an interscholastic sports program (Appeal of Tobin, 25 Ed Dept Rep 301, Decision No. 11,591; Appeal of DeMasi, et al., 18 id. 320, Decision No. 9,859).

In the instant appeal, respondent has decided to offer an interscholastic sports program, but has made program and funding decisions, to which petitioner objects. I reject petitioner’s interpretation of the Education Law regarding contingency budgets. Historically, interscholastic athletics, field trips and extracurricular activities were non-contingent expenditures that could not be included in a contingency budget. If a board of education adopted a contingency budget, and wanted to offer such programs to students, it was required to submit a proposition and obtain voter approval to fund such programs or obtain donations in advance from an outside source (Appeal of Gallagher, 39 Ed Dept Rep 623, Decision No. 14,331; Appeal of Scarrone, 35 id. 443, Decision No. 13,594; Appeal of Farrell, 30 id. 81, Decision No. 12,397).

In 1997, the Education Law was amended and extensive changes were made relating to the impact of a budget defeat and the adoption of a contingency budget. One major change was that expenses incurred for interscholastic athletics, field trips and other extracurricular activities were made ordinary contingent expenses (Education Law "2023[1]). As such, voter approval was no longer required for a school district on a contingency budget to offer such programs to students. However, additional amendments restricted the discretion of boards of education in determining the amount of contingency expenses by imposing spending caps on total spending and on administrative expenditures within the contingency budget (Education Law ""2023[3] and [4]). The statutorily imposed caps apply to all contingent expenses, even those that are specifically permitted by statute, such as interscholastic sports. The law as amended, does not, as petitioner argues, require a board of education to fund such programs in an amount equal to that contained within the proposed budget previously defeated by the voters.

Respondent claims that in adopting a contingency budget, it was compelled to make difficult choices in determining the non-academic programs it could offer while still maintaining necessary academic programs. Moreover, respondent maintains that its decision to reduce funding for interscholastic sports, and in particular, the impact on the junior varsity program, was necessary for it to comply with the statutory spending caps. A board of education’s contingency budget decisions will not be overturned upon appeal to the Commissioner unless there is a clear showing that the board’s decision was illegal or arbitrary and unreasonable (Appeal of Lawson, 18 Ed Dept Rep 314, Decision No. 9,856). I find respondent’s decision reasonable and within its general authority to manage and administer the affairs of the school district (Education Law "1709 [33]; Appeal of a Student with a Disability, 38 Ed Dept Rep 447, Decision No. 14,068).

With respect to petitioner’s claim concerning the acceptance of gifts to fund the programs at issue, respondent avers, and its policy on the acceptance of gifts indicates, that the board will accept gifts when, in the view of the board, such gifts will "add to the overall welfare of the District." There is no evidence in the record demonstrating that respondent has acted in contravention of its policy. Accordingly, I find that petitioner has failed to establish a violation of the district policy sufficient to warrant my interference (Appeal of Pulvermacher, 36 Ed Dept Rep 333, Decision No. 13,740; Appeal of Marek, 35 id. 314, Decision No. 13,554).

THE APPEAL IS DISMISSED.

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