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Decision No. 12,598

Appeal of BERNARD MITZNER from action of the Board of Education of the Goshen Central School District relating to expenditures on a contingency budget.

Decision No. 12,598

(October 31, 1991)

Shaw & Silveira, Esqs., attorneys for respondent, Garrett Silveira, Esq., of counsel

SOBOL, Commissioner.--Petitioner is a resident of the Goshen Central School District and brings this appeal to challenge expenditures made by the Board of Education while the district was operating under a contingency budget. Petitioner requests that I issue an order directing that such action as may be appropriate and necessary be taken, and that I require respondent to comply with applicable rules and regulations. The appeal must be dismissed.

During the 1990-91 school year, respondent board of education financed school district operations pursuant to a budget which had not been approved by the voters, but was approved by the board pursuant to its authority under the provisions of "2023 of the Education Law. Pursuant to "2023 the district proceeds to operate on what is known as an "austerity" or ordinary contingency budget, and in such circumstances, the board of education has the authority to levy a tax in the amount of the sum estimated necessary for "ordinary contingent expenses." Included among the expenditures approved by respondent board of education for the 1990-91 school year was the cost of replacing six incandescent lighting fixtures in the boys' locker room. They were replaced with fluorescent lighting with guard shields. Also included among the expenditures during the same year was the cost of rental agreements for three photostatic copying machines.

Petitioner asks respondent to approve the submission of a joint statement to the Commissioner, pursuant to "2024, seeking a determination as to whether or not the above described expenditures were permissible in an austerity budget. Initially, respondent did not agree to petitioner's request. Petitioner then initiated this appeal pursuant to "310 of the Education Law. At the same time that petitioner commenced this appeal, it appears that on January 8, 1991 respondent approved the submission of a statement to the Commissioner relating to the expenditures, for determination pursuant to the provisions of "2024 of the Education Law.

In its statement of January 31, 1991, respondent takes the position that the six lighting fixtures were replaced because the bulbs were continuously being broken, dropping glass into the locker room. In respondent's view, the fixtures constituted a continuing safety hazard, thereby necessitating fixtures with guard shields. The new lighting fixtures were also chosen because of their energy saving capabilities. With respect to the copying machines, respondent alleges that the copying machines are located in the primary and middle school buildings and are dedicated to staff use for the copying of instructional handouts and test materials for distribution to students. Respondent alleges that it no longer has operational mimeographs or other types of duplicating machines which previously would have been the method of creating student instructional materials. Respondent contends that in the same manner that a typewriter is essential office equipment which enables office staff to perform its functions, the copying machines are necessary and essential equipment for the preservation and maintenance of the educational programs of the school district.

Although respondent never submitted a verified answer in response to the appeal, I will consider its January 31 statement in lieu of such answer. In his reply petitioner contends that while the expenditure for the lighting fixtures may be commendable on safety grounds, the expenditure is still not justified as an ordinary contingent expense because there was no showing by respondent that any emergency existed as required by Opinion No. 213 (7 Ed Dept Rep 153). Furthermore, petitioner alleges that there was no change in the district's operations from the previous year to the current year which justified an additional rental fee for the photocopying equipment.

While I agree with petitioner that the former opinion of counsel, Opinion No. 213 (7 Ed Dept Rep 153), does not specify that the cost of repairs made to satisfy concerns of safety for students and staff are ordinary contingent expense expenditures, it is clear that other provisions of the Education Law and regulations require that safety be taken into consideration in making such repairs. The provisions of 8 NYCRR "155.2, make it clear that a board of education is constrained from using equipment which may endanger the health, safety or comfort of occupants when it repairs school facilities. It is also clear that Opinion 213 generally authorizes expenditures which are necessary to preserve property and to assure the health and safety of students and staff. Because the pleadings do not contain any relative cost specifications, I am unable to determine whether the cost of replacing the incandescent fixtures with the fluorescent fixtures with safety shields was cost effective compared to modifying the incandescent fixtures by installing safety shields. I find no reason to conclude on this record that respondent's expenditure was improper. Maintaining safe conditions in school buildings is always an obligation of a school district. Indeed, if a school district, through past experience, was on notice that the unshielded incandescent fixtures posed a safety hazard to students and staff, it would have been negligent not to replace the fixtures in order to render the lighting equipment reasonably safe.

The rental of the photocopying machines presents a new question. Petitioner is correct that Opinion 213 clearly states that the rental of office equipment is, in most instances, not an ordinary contingent expense. However, it is also clear that the same opinion states that expenditures for items necessary to maintain the educational program, including instructional supplies for teachers' use are considered ordinary contingent expenses. Further, while there is a provision of Opinion 213 which states that rental of office equipment is not an ordinary contingent expense, the same provision specifies that rental of typewriters for secretarial help is an ordinary contingent expense. While I understand petitioner's concern that respondent make only those expenditures which are truly necessary when it is operating under a contingency budget, petitioner has failed to meet his burden of demonstrating that the expenditures in question were improper. The rental cost of machines dedicated to creating instructional materials for students is authorized when school districts operate under austerity budgets. However, in a situation where the equipment was not being used for the creation of instructional supplies, it could be a violation of the provisions of "2023 for school districts to rent such equipment.

Since the record before me does not contain sufficient information to sustain either of the two arguments advanced by petitioner, and since petitioner has the burden of establishing the facts upon which relief is sought (8 NYCRR "275.10 Appeal of Singh, 30 ED Dept Ref 284; Matter of Keiling, 25 id. 122), the appeal must be dismissed.