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Decision No. 13,587

Appeal of THOMAS M. HITCHCOCK, from action of the Board of Education of the Windham-Ashland-Jewett Central School District regarding a contingency budget.

Decision No. 13,587

(March 29, 1996)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, attorneys for respondent, Craig M. Atlas, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Windham-Ashland-Jewett Central School District ("respondent"), that driver education is an ordinary contingent expense and that a driver education program should be offered during the summer of 1995 while the district is operating under an austerity budget. The appeal must be dismissed.

When the district's proposed budget for the 1995-1996 school year was defeated, respondent adopted an austerity budget on June 15, 1995. The budget included funding for a driver education class as part of respondent's educational program. At the meeting on June 15, 1995, respondent approved hiring a driver education instructor for the summer of 1995 at a salary of $2,500. The driver education program commenced on July 5, 1995 and concluded on August 15, 1995. Petitioner commenced this appeal on July 3, 1995 and requested that the Commissioner grant a stay. On July 19, 1995, Acting Commissioner Thomas E. Sheldon denied petitioner's application for a stay.

Petitioner contends that while the instructor's salary is an allowable expense during a contingency budget, related expenses pertaining to the course, such as the leasing of the car, maintenance and insurance, are not. Respondent notes that the car is owned by the district and is used for other district purposes. It further notes that four students who participated in the course were nonresidents who each paid tuition for the course in the amount of $150 which covered the cost of operating the car for the course. Respondent argues that the appeal is moot because the course is over. Respondent further argues that petitioner's appeal is barred by laches because during the summer of 1994, while respondent was operating under an austerity budget, it offered driver's education at no cost to district residents, and petitioner's son was enrolled in that class, without any objection from petitioner.

Because the class has already been completed, the appeal must be dismissed as moot. It is well settled that the Commissioner of Education will determine only matters in actual controversy and will not ordinarily render a decision upon a state of facts that no longer exist or which subsequent events have laid to rest (Appeal of Brewer, 35 Ed Dept Rep 196; Appeal of Stopka, 34 id. 157; Appeal of Langenmayr, 30 id. 322; Appeal of Hmiel, 30 id. 86).

Petitioner's contention must also be rejected on the merits. It is well settled that decisions regarding the instructional programs to be offered in the schools within a district are within the discretion of the board of education. It has previously been determined that the costs associated with nonmandatory summer courses are an ordinary contingent expense which do not require voter approval (Appeal of the Board of Education and Resident Taxpayers of the New Paltz CSD, 30 Ed Dept Rep 300). Furthermore, the record in this appeal indicates that the car used in the disputed driver education course was already owned by the district and that respondent did not incur any additional expenses in connection with this course which were defrayed by the use of taxpayer funds. In view of the foregoing, I do not find respondent's determination to conduct a summer school driver education program while operating under a contingency budget inappropriate.