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Decision No. 13,158

Appeal of GALEN B. SEERUP from action of the Board of Education of the Putnam Central School District relating to expenditures made while operating under a contingency budget.

Decision No. 13,158

(April 18, 1994)

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

SOBOL, Commissioner.--Petitioner appeals respondent board of education’s alleged expenditures of school district funds while on an austerity budget. The appeal must be dismissed.

When the proposed budget for the 1992-93 school year failed to obtain voter approval, the Board of Education of the Putnam Central School District ("respondent") adopted an austerity budget. Petitioner contends that respondent has made expenditures of district funds which are prohibited when a board of education is operating under an austerity budget. Respondent denies that it has made any improper expenditures.

Before reviewing the merits of this appeal, I will first address a procedural issue. Petitioner has challenged respondent’s hiring of two new teachers and the granting of a raise to the district treasurer. Because a determination favorable to petitioner in this matter would necessarily affect the interests of those employees to receive compensation, their joinder is required. Petitioner’s failure to name and serve the new teachers and the district treasurer as respondents requires dismissal of the appeal on procedural grounds (Appeal of Parsons, 32 Ed Dept Rep 444; Appeal of Jacobson, 28 id. 167).

The appeal must also be dismissed on the merits. Education law "2023 authorizes a board of education to adopt what is variously called an "austerity" or "ordinary contingency" budget. The statute provides: If the qualified voters shall neglect or refuse to vote the sum estimated necessary for teachers’ salaries, after applying thereto the public school moneys, and other moneys received or to be received for that purpose, or if they shall neglect or refuse to vote the sum estimated necessary for ordinary contingent expenses … the sole trustee, board of trustees, or board of education may levy a tax for the same, in like manner as if the same had been voted by the qualified voters.

The responsibility for determining what items constitute ordinary contingent expenses lies in the first instance with the board of education. When an appeal is brought pursuant to Education law "310 to review such a determination, the general rule is:

…an expense may be considered contingent if it is a legal obligation; if it is specifically authorized by statute; or if it is necessary to maintain the educational program, preserve property or assure the health and safety of the students or staff (Formal Op of Couns No. 213, 7 Ed Dept Rep 153; Appeal of Epler and Sawster, 13 id. 114).

Petitioner incorrectly contends that respondent is not authorized to hire additional teaching staff while operating under an austerity budget. It is within the authority of a board of education "to prescribe the course of study" to be followed in the schools of the district (Education law "1709[3]). That authority includes the discretion to determine, within the bounds set by statute and regulation, which courses are to be offered (Appeal ofFeller, 28 Ed Dept Rep 321; Application of Mennella, 21 id. 721 Appeal of Raffone, 13 id. 245). Likewise, Education law "1709(16) specifically authorizes a board of education: "to contract with and employ such persons as by the provisions of this chapter are qualified teachers (and) to determine the number of teachers to be employed in the several departments of instruction…" The record indicates that the board carefully reviewed its needs and determined that two additional teachers were necessary to ensure the provision of an appropriate education to the students of the district. Petitioner presents no evidence to indicate that respondent’s determination as to staffing needs is arbitrary, capricious or unreasonable. Moreover, the costs of teacher salaries are clearly ordinary contingent expenses (Education law "2023; Appeal of Feller, supra; Appeal of Moore, 18 Ed Dept Rep 375).

Petitioner also maintains that respondent may not grant its district treasurer a raise while operating under an austerity budget. However, a board of education is specifically authorized by Education law "2130(4) to appoint a district treasurer and set the salary for that position, without voter approval (Appeal of Parsons, supra; Appeal of Palillo, 6 id. 117). Since this expense is specifically authorized by statute, it is a contingent expense, permissible under an austerity budget (formal Op of Couns No. 213, supra).

Finally, petitioner maintains that respondent has improperly purchased several items of equipment while on an austerity budget. However, the record indicates that the items in question were either not purchased or were purchased pursuant to funding provided in the 1991-92 budget which was approved by the voters.