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Decision No. 13,304

Appeal of JAMES P. BLIZZARD from action of the Board of Education of the Livonia Central School District regarding a contingency budget.

Decision No. 13,304

(December 8, 1994)

Harris Beach & Wilcox, Esqs., attorneys for respondent, James A. Spitz and Edward A. Trevvett, Esqs., of counsel

SOBOL, Commissioner.--Petitioner challenges the adoption of a contingency budget by the Board of Education of the Livonia Central School District ("respondent"). The appeal must be dismissed.

Petitioner is a resident of respondent's district. On May 11, 1994, the voters rejected respondent's base budget by a vote of 840 to 554. Respondent conducted an exit poll of voters concerning their opinions on the base budget and propositions presented. On May 23, 1994, respondent voted to adopt a contingency budget and hold a second vote on eight other propositions. That vote occurred on June 8, 1994. The adopted contingency budget contained several personnel items, including funds for the hiring of an assistant superintendent for instruction and full-time clerical help for that position, the expansion of the position of director of special education and one clerical position from a ten month to a twelve month position, and the hiring of three half-time clerical aides, an emergency teacher and two teacher aides. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on June 30, 1994.

Petitioner alleges that respondent improperly included personnel items in the contingency budget and requests that I order those items removed. Respondent contends that it acted properly in adopting its contingency budget and including the personnel items challenged by petitioner.

Education Law '2023 authorizes a board of education to adopt what is variously called an "austerity" or "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 including the purchase of library books and other instructional materials associated with a library, 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 identifying items that 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 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 Opinion of Counsel No. 213, 7 Ed Dept Rep 153).

The rule applicable to salaries for nonteaching employees, as stated in Formal Opinion of Counsel No. 213 (7 Ed Dept 153), is that only salaries for the necessary numbers of nonteaching employees may be authorized. The board of education is obligated to limit expenditures to what is considered necessary to permit the school district to function properly.

Petitioner alleges that respondent's inclusion of personnel items in the contingency budget is improper and unnecessary. Respondent notes that three of these positions, the assistant superintendent for instruction, the emergency teacher position and the emergency teacher aide position, are certificated teaching and administrative positions relating to curriculum instruction or the instructional program. It is well established that such matters are within the sound discretion of the board of education and are not subject to voter approval (Appeal of Aarseth, 32 Ed Dept Rep 506; Matter of Bd. of Educ., New Paltz Central School District, 30 id. 300). As to the half-time teacher's aide position, respondent contends that the position is not a new position being added to the 1994-95 contingency budget, but represents a position that the district will need to fill when the current employee vacates the position. Therefore, the position is not a new one added to the contingency budget.

Petitioner alleges that respondent improperly included the remaining six positions in the contingency budget. However, as previously noted, respondent is permitted under a contingency budget to expend funds for the salaries for the necessary number of nonteaching employees that will permit the school district to function properly. Respondent has provided sufficient justification for those positions. The increase in the work year of the director of special education and clerical staff from ten months to twelve months is justified by an increase in special education students over the past ten years from 213 students in 1985 to 439 students in 1994. The record before me indicates that respondent has provided a thoughtful justification for the remaining positions and their importance to district operations. Where the board of education has carefully examined its staffing needs and determined that it requires the hiring of a limited number of nonteaching personnel to continue the operation of its programs, it is entitled to include those salaries as ordinary contingent expenses (Matter of Rhodes, 21 Ed Dept Rep 632; Formal Opinion of Counsel No. 213, supra).

I have considered petitioner's remaining contentions and find them without merit.