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Decision No. 13,637

Appeal of CITIZENS FOR EDUCATION from action of the Board of Education of the Canastota Central School District regarding a contingency budget.

Decision No. 13,637

(July 12, 1996)

Devorsetz, Stinziano, Gilberti, Heintz & Smith, P.C., attorneys for

petitioner, Frank A. Bersani, Jr., Esq., of counsel

Hogan & Sarzynski, LLP, attorneys for respondent, John P. Lynch,

Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination by the Board of Education of the Canastota Central School District ("respondent") to reduce the amount of a contingency budget previously adopted by its predecessor board. The appeal must be dismissed.

On June 7, 1995, the voters of the Canastota Central School

District defeated the proposed school budget. On June 20, 1995, the school board adopted a contingency budget pursuant to Education Law '2023 in the amount of $12,405,503.00. On July 27, 1995, respondent, the newly constituted school board, reduced that budget by the sum of $280,000.00 pursuant to a prioritized list of possible cuts prepared by respondent's superintendent of schools.

Petitioner initially challenged respondent's action in a proceeding brought pursuant to Article 78 of the Civil Practice Law and Rules in New York State Supreme Court, Madison County. However, by stipulation filed October 17, 1995, the parties discontinued said proceeding after the court noted in a decision denying petitioner's request for a temporary restraining order that the issues involved matters of educational policy more appropriately determined by the Commissioner of Education. Thereafter, on October 19, 1996 petitioner initiated this appeal.

Petitioner asserts that items respondent has eliminated from the June 20 contingency budget are necessary to maintain the educational program in the district and contends that, therefore, the reductions are improper. Petitioner also contends that the reduction was arbitrary and capricious because it violates sound educational policy.

In its answer respondent argues that, in reducing the contingency budget, it did not violate any law or regulation and the resulting contingency budget is in all respects proper. Respondent further asserts as procedural defenses that petitioner lacks standing to maintain the appeal and that the appeal is untimely.

As a threshold matter, this appeal must be dismissed for lack of standing to bring an appeal before the Commissioner of Education. This appeal was brought by the Citizens for Education, and the petition was verified by an individual in her capacity as president of that group. There is no indication that the group is incorporated. An unincorporated association, such as this group, lacks standing to maintain an appeal to the Commissioner (Appeal of The Plaza School Playground Committee, 35 Ed Dept Rep 83; Appeal of PS 7/IS 171 Environmental Improvement Committee, 34 id. 297). In addition, an individual representative of an unincorporated association does not have standing to maintain an appeal pursuant to Education Law '310 (Appeal of Concerned Taxpayers Awareness Group, 35 Ed Dept Rep 448; Appeal of The Plaza School Playground Committee, supra).

The appeal must also be dismissed on the merits. On July 27, 1995 respondent made an adjustment to the contingency budget adopted by its predecessor board further reducing that budget by $280,000.00. In an affidavit by its superintendent, respondent indicates that to effectuate the reduction:

The costs (that make up the reductions) are organized into three levels which in my opinion were prioritized in regard to impact upon the District. Priority one cuts have the least impact upon the operation of the District. Priority three cuts have the greatest impact on the district and priority three cuts were further prioritized into levels A through F. A level A cost has a lesser impact upon the District than would a level F cut in my opinion. It was further understood by all present at the meeting that the sum of $280,000.00 represented all priority one cuts plus all priority two cuts plus cuts of priorities three A, three B, and three C. The total of these items minus budget lines which were included in propositions is approximately the $280,000.00 amount which the Board directed me to cut ....

This adjustment of the contingency budget is within respondent's statutory authority pursuant to Education Law '2023. As I noted in Appeal of Seerup, 33 Ed Dept Rep 585, 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).

In this case, respondent exercised its authority in accordance with Education Law '2023 and adjusted a contingency budget which had been established by its predecessor board. Although petitioner does not agree with respondent's final determination regarding items to include in the contingency budget, affidavits of the superintendent of schools show that despite the reductions, the district was able to maintain the educational program as required by statute and regulation. The reductions include funds for supplies, workshops, voting locations, overtime, office equipment, one full-time and seven part-time teaching positions. There is nothing in the proposed cuts which indicate that statutory and regulatory requirements will not be met under the revised contingency budget. Although petitioner asserts that respondent violated sound educational policy by reducing its contingency budget, the record before me contains no evidence supporting that assertion.

Having determined the appeal must be dismissed for the reasons stated herein, I will not address the parties' other assertions.