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Decision No. 14,085

Appeal of HERMAN FRIEDMAN, DAVID FARBER, and SOLOMON SCHLESINGER from action of the Board of Education of the East Ramapo Central School District with regard to certain expenditures.

Decision No. 14,085

(March 6, 1999)

Greenberg, Wanderman & Fromson, Esqs., attorneys for respondent, Stephen M. Fromson, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal actions taken by the Board of Education of the East Ramapo Central School District ("respondent") which added additional monies to a previously adopted budget. The appeal must be dismissed.

On May 19, 1998, the voters of the East Ramapo Central School District approved the proposed budget of $122,156,584 by a margin of approximately 64.6% in favor. Petitioners do not in any way challenge that approval.

On August 18, 1998, the district's superintendent recommended three adjustments to that budget to respondent. The superintendent recommended adding $2.8 million to cover anticipated early retirement incentives for teachers which had recently been negotiated in a collective bargaining agreement. He further recommended the addition of $238,235 to cover debt service on bonds which had been approved by the voters in March 1997, but which had not been sold until July 1998. Finally, he recommended the addition of $115,000 for salaries for teaching assistants at the kindergarten level. All of these expenditures were to be paid from existing fund balances. Respondent approved those adjustments, totaling $3,153,235, at its August 18 meeting. Petitioners challenge those additions and commenced this appeal on September 15, 1998.

As noted above, petitioners do not challenge the budget approved by the voters. Petitioners contend, however, that Education Law "2023(1), as amended by Chapter 436 of the Laws of 1997, applies to the actions taken by respondent in August 1998. Petitioners concede that prior to the enactment of Chapter 436 of the Laws of 1997, "the power of a board of education to make appropriation for teachers' salaries and ordinary contingent expenses was unlimited." However, petitioners contend that the language added to "2023(1), i.e., that the board "shall adopt a contingency budget" and that such contingency budget shall be "subject to the limitations contained in subdivisions three and four of the section" has now made any action taken by the board pursuant to "2023(1) subject to those limitations. Petitioners therefore conclude that by adding the August 1998 changes to the May 1998 voter approved budget, the total exceeds the limitation permitted under "2023(3) and (4).

Respondent disputes many of petitioners' factual claims, and argues that Education Law "2023 has no application to this matter, because the voters of the district did not "neglect or refuse to vote the sum estimated necessary" for either teachers' salaries or ordinary contingent expenses.

I must agree with respondent that Education Law "2023 does not apply to the factual situation at hand. Petitioners' argument depends on ignoring the basic premise of the statute: "If the qualified voters shall neglect or refuse to vote the sum estimated necessary for teachers' salaries . . . 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 shall adopt a contingency budget . . . " In the case before me, the voters of the district in fact approved a budget in excess of $122 million by a margin of nearly two to one. Since the basic factual circumstances for application of the statute do not exist, the statute clearly has no application.

Even if I accept petitioners' reasoning to the extent of recognizing that the additions made by respondent in August 1998 were contingent expenses as defined by "2023(1), I cannot accept their conclusion that such additions to a much larger budget previously approved by the voters, somehow brings the entire budget within the scope of the limitations imposed upon contingency budgets by "2023(3) and (4).