Appeal of CHARLES WARE from action of the Board of Education of the Cato-Meridian Central School District and the Superintendent of Schools regarding a contingency budget.

Decision No. 15,156

(December 24, 2004)

Matthew R. Fletcher, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner challenges the action of the Board of Education of the Cato-Meridian Central School District ("respondent board") and its superintendent of schools in calculating the administrative component of a contingency budget. The appeal must be dismissed.

Petitioner was elected to respondent board at the district�s annual election on May 18, 2004. On June 24, 2004, after district voters twice defeated a proposed budget, respondent board adopted a contingency budget as required by Education Law ��2022 and 2023. On July 13, 2004, after taking office, petitioner initiated this appeal challenging the calculation of the administrative expense component of the contingency budget.

Petitioner claims that the administrative component of the proposed contingency budget, published prior to the second vote on the district�s proposed budget on June 18, 2004, exceeded the statutory limitation imposed by Education Law �2023(3). Petitioner also asserts that the contingency budget adopted by respondent board on June 24, 2004 continued to exceed the statutory cap on the administrative component. Petitioner asks that I direct respondents to properly calculate any contingency budget in the future.

Respondents contend that petitioner lacks standing to maintain this appeal, and that petitioner seeks an advisory opinion. Respondents assert that the contingency budget was revised on July 21, 2004 and the final contingency budget is in all respects proper.

Respondents claim that petitioner is not aggrieved and lacks standing to bring this appeal. A district resident has standing to challenge an alleged illegal expenditure of district funds (Appeal of Gargan, 40 Ed Dept Rep 465, Decision No. 14,528; Appeal of Goldin, 38 id. 322, Decision No. 14,044). Thus, I find petitioner has standing to maintain this appeal.

The Commissioner of Education does not issue advisory opinions or declaratory rulings in appeals brought pursuant to Education Law �310 (Appeal of L.M., 43 Ed Dept Rep 279, Decision No. 14,994; Appeal of Bach, 43 id. 182, Decision No. 14,962). Although petitioner alleges that at the June 18, 2004 budget vote district voters were misinformed about the proposed contingency budget that respondent board would adopt if the proposed budget was defeated, he does not seek to have the results of that budget vote annulled. Nor does petitioner request annulment of the contingency budget adopted by respondent board on June 24, 2004 or the revised contingency budget approved on July 21, 2004. In his request for relief, petitioner merely asks for an order directed to respondents "stating when future budgets are developed, they must meet the requirements, intent, and spirit of Education Law �2023." Thus, while respondents are obligated to abide by all provisions of the Education Law, the relief sought constitutes an impermissible request for an advisory opinion.

THE APPEAL IS DISMISSED.

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