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Decision No. 12,635

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

Decision No. 12,635

(January 21, 1992)

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

SOBOL, Commissioner.--Petitioner, a resident of the Goshen Central School District, brings this appeal contending that respondent Board of Education of the Goshen Central School District has violated its authority under '2023 of the Education Law by allegedly operating a cafeteria program which is not self-supporting. Petitioner requests that I issue an order in which all appropriate means are implemented to punish respondent for the purported violation of its authority and responsibility. The appeal must be dismissed.

For the school fiscal year beginning July 1, 1990 and ending June 30, 1991, respondent was operating pursuant to a budget adopted under '2023 of the Education Law. Adoption of such a budget is necessary when the voters fail to vote approval of the budget proposed by the school district. During the 1990-91 school year, respondent operated the same cafeteria program it had in prior years. Section 1709(22) of the Education Law reads in pertinent part:

To provide, purchase, lease, furnish and maintain buildings or other suitable accommodations for the use of teachers or other employees of the district when duly authorized by a meeting of the district and to raise by tax upon the taxable property of the district and (sic) moneys necessary for such purposes; and, also, when so authorized, to provide, maintain and operate a cafeteria or restaurant service for the use of pupils and teachers while at school, except that voter approval shall not be required where said cafeteria or restaurant service has been operated during the preceding school year and requires no tax levy. (emphasis supplied)

On or about April 17, 1991 respondent placed a legal notice in a local newspaper advising that the annual school district election would be held on June 5, 1991 and that one of the propositions to be voted on would authorize respondent to expend an amount not to exceed $60,000, of which $40,000 would be used to repay a loan made to the cafeteria from the general fund of the district to maintain the cafeteria program during the 1988-89 through 1990-91 school years. The sum of $20,000, or so much as might be necessary, would be made available to subsidize the cafeteria program for the 1991-92 school year. This appeal was commenced on or about April 22, 1991.

Petitioner contends that respondent violated ''1709(22) and 2023 of the Education Law on the ground that the respondent has been subsidizing the operation of the cafeteria with tax moneys without voter approval for the 1990-91 school year, and voter approval is required if any tax levy is to be imposed upon residents of the district for that purpose. Petitioner argues that by requesting a vote to authorize the expenditure of funds to repay the loan, respondent has implicitly admitted that taxpayer funds were being used to support the operation of the school cafeteria.

Respondent alleges that the sum of $40,000 represents repayment of an amount which was loaned to the school cafeteria program from the general fund during the 1988-89 school year, and that the school cafeteria has been financially self-sufficient for the past two years.

In his reply, petitioner argues that by incurring a deficit during the 1988-89 school year and carrying that debt forward, the school cafeteria in fact operated at a deficit for the 1990-91 school year. The reply also contains a number of allegations relating to so-called indirect costs incurred in operating a cafeteria program. These allegations cannot be considered in this appeal since they do not constitute replies to affirmative defenses contained in the answer and are, therefore, in violation of 8 NYCRR '275.14.

In a later submission by respondent, it appears that on June 5, the voters approved the proposition to subsidize the school lunch fund by a margin of 1,228 in favor and 806 opposed. Based upon the fact that the voters have approved the payment of up to $60,000 for the cafeteria program, and the imposition of a tax levy for that amount, respondent argues that the appeal has been rendered moot and should be dismissed.

It is clear from the documents before me that the residents of the district have approved the expenditure of funds and a corresponding tax levy sufficient to operate the school cafeteria program. As a result, the issue sought to be raised in this appeal has become academic. It has long been established that the Commissioner of Education will determine only matters in actual controversy and will not render a determination upon a controversy which subsequent events have settled (Appeal of Huggins, 28 Ed Dept Rep 173; Matter of Nugent, 22 id. 347; Matter of Harri, 22 id. 388). Therefore, the appeal must be dismissed.