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Decision No. 13,685

Appeal of EUGENE T. BROUSSEAU from action of the Board of Education of the Shenendehowa Central School District, Superintendent John Yagielski, Victor M. DeBonis, and Amy Cullen regarding a contingency budget.

Decision No. 13,685

(October 2, 1996)

Victor M. DeBonis, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner, a resident of the Shenendehowa Central School District, appeals the appointment of Amy Cullen by respondent board to the position of Community Service Coordinator while the district was on a contingency budget. The appeal must be dismissed.

By memorandum dated June 7, 1995, respondent Superintendent Yagielski asked the board to approve the new position of Community Service Coordinator, effective July 1, 1995, based on the following description:

This position would be funded through revenues received on the rental of our facilities. This job will primarily coordinate the use of facilities between community and Continuing Education Programs of the District. As a less than half-time position, this job will have no benefits attached to it.

The board approved the position on June 13, 1995. On June 27, 1995, respondent school board adopted a contingency budget, and on February 13, 1996, it appointed Amy Cullen as Community Service Coordinator. This appeal ensued. Petitioner contends that the position is not an ordinary contingent expense and requests that Ms. Cullen be removed. Petitioner's request for interim relief pending a determination on the merits was denied on March 8, 1996.

Respondents raise a number of defenses, including failure to state a claim upon which relief can be granted. Respondents argue that the magnitude of those facilities maintained by the district and the extensive use of the facilities by fee-paying groups justify the position as an ordinary contingent expense in order to preserve the district's property. Respondents also argue that filling the position of Community Service Coordinator was not improper because it is funded through revenues received from facility rental, not from taxpayer funds.

The responsibility for determining what constitutes an ordinary contingent expense lies in the first instance with the board of education (Appeal of Nolan, 35 Ed Dept Rep 139). However, under Education Law '2024, any question concerning a board's determination of such an expense may be referred to the Commissioner of Education for determination. The general standard by which contingent budget determinations are judged is that an expense may be considered contingent if it is a legal obligation of the district or if it is necessary to maintain the educational program, preserve property or assure the health and safety of the students and staff (Formal Opinion of Counsel No. 213, 7 Ed Dept Rep 153).

Expenses incurred by a school district for the use of school buildings and grounds by nonschool groups are not ordinary contingent expenses (Formal Opinion of Counsel No. 213, supra; Appeal of Forlani, 23 Ed Dept Rep 325). Therefore, the compensation of the Community Service Coordinator, for the purpose of overseeing such use, is not an ordinary contingent expense.

However, where no identifiable extra cost to the district results from such use, a school district operating under an austerity budget may continue to make school facilities available to outside agencies, and a board may impose a rental charge on outside organizations in an amount sufficient to defray the expenses resulting from such use (Education Law '414(2); Appeal of Forlani, supra). Therefore, as long as this position is fully funded through revenues received from facility rental fees, not from taxpayer funds, there is nothing improper in the filling of this position.