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Decision No. 12,972

Appeal of C. THOMAS CUMMINGS and FRANK CHARLTON from action of the Board of Education of the Putnam Central School District relating to expenditures on a contingency budget.

Decision No. 12,972

(August 2, 1993)

Ruberti, Girvin & Ferlazzo P.C., attorneys for respondent, Jeffrey D. Honeywell, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal respondent's proposed expenditures while operating under a budget adopted pursuant to Education Law '2023, otherwise known as a "contingency" budget. Petitioners request that I direct respondent to adopt a different contingency budget, incorporating certain reductions for proposed expenditures for transportation, salary, equipment, contractual obligations and public use of school property. The appeal must be dismissed.

The voters of the Putnam Central School District twice rejected budgets proposed by respondent on May 20 and June 12, 1992. On or about June 23, 1992, respondent adopted a contingency budget. Petitioners commenced this appeal on or about August 28, 1992 to challenge certain expenditures proposed by respondent in that contingency budget.

Petitioners contend that respondent's contingency budget improperly includes expenditures for transportation of children attending grades K-6 who live within two miles of the school attended; salary increases for non-certified, non-union employees in the amount of $2,300; expenses estimated at $26,300 for new equipment; contractual expenses in an additional amount of $37,200; and expenditures for use of school buildings by outside agencies. Petitioners request that I excuse their delay in bringing this appeal on the grounds that they attempted to resolve their complaints by discussing them with district personnel and by correspondence with the New York State Education Department.

Respondent generally denies that the contingency budget adopted on June 23, 1992 includes expenditures for items not permissible under Education Law '2023. Specifically, respondent alleges that the additional salary amount complained of by petitioners, although not specifically identified by them, in all likelihood relates to the salary of the district treasurer, and that respondent is authorized under the Education Law to set the district treasurer's salary. Respondent alleges that the additional equipment and contractual expenses identified by petitioners relate to the replacement of a heating and boiler system, drilling of a well, reconstruction of two uninsulated walls, and remodeling of a basement area, to provide space for Chapter 1 instruction. Respondent alleges that the voters of the district approved the sum of $58,500 for the majority of these purposes in a proposition adopted on August 11, 1992, and that the remainder of the funds involved, i.e., those for renovation for Chapter 1 instructional space, will be supplied by Chapter I grants and not from tax levies imposed on school district property. Respondent also contends that it does not expect to incur expenses relating to the use by outside agencies of school buildings during the year, and that, in fact, any expenditures incurred will be paid by such outside agencies. District funds are not expected to be used. Finally, respondent contends that the current transportation contract for children residing within the district does not contain a breakdown which would allow an estimated cost for the transportation of children who live less than two miles from the school they attend, and that inquiries made of the transportation contractor revealed that there would be no savings to the district if the contractor was relieved of the responsibility of transporting these children. Respondent further argues that the petition should be dismissed since it is not specific enough to identify the particular expenditures which petitioners object to, and that the appeal should be deemed untimely under 8 NYCRR '275.16 since it was commenced more than thirty days after the board of education adopted its 1992-93 contingency budget. In response to petitioners' request that their failure to commence timely the appeal should be excused, respondents argue that petitioners have not demonstrated sufficient reasons for failure to file a timely petition.

Because I find that petitioners have failed to identify any expenditure imposed by respondent which may not be made in a contingency budget, I find that the appeal must be dismissed. It is petitioners' burden in a proceeding brought pursuant to Education Law '310 to demonstrate entitlement to the relief requested in the petition (Appeal of Pickreign, 28 Ed Dept Rep 163). Education Law '2130 authorizes respondent to hire a district treasurer and to set the compensation for that position (see Matter of Palillo, 6 Ed Dept Rep 117). The action of the district's voters in approving $58,500 in expenditures for capital improvements negates any claim by petitioners that the improvements constitute expenditures which respondent cannot undertake when district voters fail to approve the budget. The expenditure without voter approval of Chapter I grant funds for renovation of instructional space is specifically authorized by Education Law '1718(2). Lastly, since petitioners have failed to identify any additional expenses occasioned by outside use of school district buildings, or by the transportation of elementary children who live less than two miles from the school they attend, there is no basis to conclude that respondent has incurred expenses which may not be incurred when it adopts a budget under the provisions of Education Law '2023.

With respect to the issue of timeliness, while I approve of petitioners' attempts to resolve the issues administratively in this appeal, I do not find that those attempts were sufficient to excuse their delay in filing the appeal, and, therefore, the appeal must be dismissed on procedural grounds as well.