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Decision No. 13,316

Appeal of FRANK BOSCO from action of the Board of Education of the Irvington Union Free School District regarding a contingency budget.

Decision No. 13,316

(December 16, 1994)

Plunkett & Jaffe, P.C., attorneys for respondent, Richard S. Altman, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's adoption of a contingency budget and the expenditure of school district funds for certain items while on a contingency budget. The appeal must be dismissed.

After the proposed budget for the 1994-95 school year was twice rejected by the voters, the Board of Education of the Irvington Union Free School District ("respondent") adopted a contingency budget. Petitioner contends that respondent has made expenditures of district funds which are prohibited when a board of education is operating under a contingency budget. Respondent denies that it has made any improper expenditures.

Education Law '2023 authorizes a board of education to adopt what is called an "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; Matter of Epler and Sawester, 13 id. 114).

Petitioner argues that a board of education under a contingency budget may only educate children who are of compulsory attendance age (See Education Law '3205). Petitioner contends that because children attending kindergarten are not of compulsory attendance age, respondent may not operate a kindergarten program while under a contingency budget. Petitioner also challenges respondent's practice of offering its high school seniors advance placement courses. Those contentions are without merit. 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 boundaries established by statute and regulation, which courses are to be offered (Appeal of Seerup, 33 Ed Dept Rep 585; Appeal of Feller, 28 id. 321; Matter of Raffone, 13 id. 245). Kindergarten and advance placement courses fall within such discretion and may be offered while a district is on a contigency budget (Appeal of Ambrosio, 30 Ed Dept Rep 387; Appeal of Feller, supra).

Petitioner also challenges respondent's practice of permitting nonresident students to attend its schools on a tuition basis. However, pursuant to Education law '3202(2), a board of education is authorized to admit nonresident students. Tuition for such students is to be computed in accordance with Part 174 of the Commissioner's regulations. Accordingly, there is no basis to sustain petitioner's challenge on this issue.

Finally, petitioner contends that respondent improperly adopted a contingency budget containing the same expenditures as the second budget submitted to and rejected by the voters. In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Lemley, 33 Ed Dept Rep 706; Appeal of Cauley, 33 id. 359; Appeal of Singh, 30 id. 284). Petitioner offers no legal basis for his assertion that respondent may not adopt a contingency budget which is similar to one previously rejected by the voters. If a budget contains only ordinary contingent expenses, a board of education may properly adopt it as a contingency budget even though the same budget was previously rejected by the voters (see Matter of Reid, et al., 8 Ed Dept Rep 99).