MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the City School District of the City of New Rochelle ("respondent board") to levy taxes and issue warrants to fund the New Rochelle Public Library ("NRPL") for the remainder of the library"s fiscal year, ending June 30, 2003. The appeal must be dismissed.

NRPL was chartered by the Board of Regents in 1894 as a school district public library. Pursuant to its charter, respondent board has elected NRPL trustees. Respondent city was incorporated in 1899. At some point, no later than 1930, respondent city assumed responsibility for funding NRPL and a provision for this funding was included in the city charter. According to petitioner, it was notified sometime in 2001 that respondent city was facing budget cuts that would impact the funding it would allocate to NRPL. Petitioner began to explore other funding options, including the possibility of conducting a special district meeting under Education Law ""259 and 260 to seek voter approval of its budget. Respondent city allocated $2,725,345 from its budget to NRPL for the 2002 calendar year. Petitioner"s fiscal year runs from July 1 through June 30, coinciding with the school district"s fiscal year.

On June 12, 2002, petitioner conducted a special district meeting to seek voter approval for a budget of $3.34 million. The proposed budget was defeated. On July 9, 2002, the voters rejected the proposed budget again. On August 12, 2002, petitioner adopted a resolution to consider the $2,725,345 that respondent city had budgeted for NRPL as an "annual appropriation" for its fiscal year pursuant to Education Law "259(1). By letter dated August 14, 2002, petitioner formally demanded that respondent board issue tax warrants in the amount of $1,362,672.50 to fund NRPL from January 1, 2003 through June 30, 2003, that amount representing one-half of the amount appropriated to NRPL in respondent city"s annual budget.

By letter dated August 28, 2002, respondent board notified petitioner that it would seek the advice of the Commissioner of Education before issuing any tax warrants for NRPL. By letter dated September 27, 2002, my Counsel and Deputy Commissioner for Legal Affairs advised respondent board that a definitive answer could not be provided because an appeal to the Commissioner of Education pursuant to Education Law "310 had already been commenced regarding the July 9 budget vote (See, Appeal of Colety, et al., 42 Ed Dept Rep __, Decision No. 14,806). Petitioner then commenced this appeal and its request for interim relief was denied on October 25, 2002.

Petitioner argues that respondent board"s refusal to levy a tax on behalf of NRPL was arbitrary, capricious and a violation of law. Petitioner asserts that respondent board is statutorily obligated to maintain and support NRPL. Petitioner contends that respondent city is a necessary party due to its long history of providing NRPL funding. Petitioner requests that I order that the $2,725,345 allocated to NRPL by respondent city for 2002 constitutes an annual appropriation pursuant to Education Law "259(1) and enjoin respondent board from refusing to levy taxes based on that amount. Petitioner further requests that I direct respondent board to maintain and support NRPL.

Respondent board contends that it has no duty to fund NRPL because it may no longer be a school district public library and that it has operated as a defacto municipal public library. Respondent board asks for a determination clarifying the rights and responsibilities of the parties to this appeal.

Respondent city contends that it is not a necessary party to this appeal. Respondent city further alleges that there has never been any agreement between the city and petitioner, whereby the city is obligated to fund NRPL. Respondent city asserts that its funding role is an anachronistic vestige of law from a time when the city school district"s funding was also raised by the city before the enactment of the City School Law (Chapters 762-764 of the Laws of 1950).

Respondent board"s contention that NRPL is not a school district public library is mistaken. NRPL"s charter specifies that the library trustees "shall be elected by the board of education of school district no. 1, New Rochelle." Respondent board does not dispute that it is the successor to the board of education named in the charter or that it has continuously selected the library trustees throughout the history of NRPL. Nor does it dispute that NRPL was chartered before the city was incorporated, so that it could not have been chartered as a city library. Respondent board attempts to minimize its role by asserting that its only connection to the library is to select the trustees, while all budgetary decisions have been made by respondent city. Respondent board"s argument that the city"s fiscal support has transformed NRPL into a municipal library lacks merit. No provision of the Education Law provides for such a transformation. Municipal funding of a school district public library, while permitted by Education Law "255, does not change the character of the library.

Petitioner claims that the amount of money budgeted for NRPL by respondent city in 2002 should be considered a "continuing appropriation" under Education Law "259(1) that would authorize respondent board to levy a tax to fund for the remainder of its fiscal year. Education Law "259(1) states, in pertinent part:

Petitioner"s reliance on this provision is misplaced. The statute contemplates that any authorized authority may vote to levy a tax which shall be considered an annual appropriation unless changed by "further vote" of that same authority (see, e.g., 7 Op. State Compt. 70, 1951). It simply does not authorize the school district to levy a tax based upon the city"s past decision to fund NRPL. Section 255(1) names the electors of a school district as the authority that may vote to establish a school district public library and appropriate money raised by a tax or otherwise. Thus, voter approval is required before any tax can be levied. Because respondent city authorized the appropriation of $2,725,345 to NRPL, only respondent city can levy taxes based on that appropriation.

While I appreciate the difficulties faced by petitioner under these somewhat unusual circumstances, I cannot order respondent board to levy a tax in an amount that has never been approved by district voters. I also note that Education Law "260(9) allows petitioner, in its discretion, to resubmit a proposed budget to the voters.

In light of this disposition, I need not address the parties" remaining contentions.

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