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Decision No. 15,688

Appeal of GEORGE R. HUBBARD from action of the Board of Education of the Greece Central School District and Superintendent Steven Achramovitch regarding a contingency budget.

Decision No. 15,688

(November 21, 2007)

Harter, Secrest & Emery LLP, attorneys for respondents, Bethany A. Centrone, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges certain actions of the Board of Education of the Greece Central School District (“respondent board” or “board”) regarding the adoption of a contingency budget for the 2007-2008 school year.  The appeal must be dismissed.

On May 15, 2007, the district held its annual budget vote at which the voters defeated the proposed budget of $188,361,019.  On May 22, 2007, respondent board adopted a contingency budget of $187,657,828 for the 2007-2008 school year.  This appeal ensued.

Petitioner claims that when the board adopted the contingency budget, it failed to produce budget documents with the same degree of specificity as those for the budget that had been presented to the voters.  He contends, therefore, that the contingency budget was not properly approved.  Petitioner asserts that the board was previously admonished about a similar insufficient budget methodology in Appeal of Hubbard (43 Ed Dept Rep 3, Decision No. 14,898).  Petitioner requests that I direct the board and the superintendent to prepare and adopt a proper contingency budget for 2007-2008.  Petitioner’s request for interim relief was denied on June 5, 2007.

Respondents contend that the appeal is moot and fails to state a claim upon which relief may be granted.  They assert that at the board’s May 22, 2007 meeting, the superintendent provided each member of the board with a list of all non-contingent equipment that had been included in the proposed budget that would need to be eliminated in a contingency budget.  In addition, each member received a copy of a PowerPoint presentation by the district’s school business official (“official”) showing additional expenditures that would be eliminated in a contingency budget.  The official explained, in public session, that the contingency budget would be the amount of the rejected budget, less all non-contingent expenses comprised of $380,671 in listed non-contingent equipment; $57,520 in non-instructional salaries; and $265,000 in non-contingent capital projects.

Respondents also state that on May 30, 2007, the board prepared a contingency budget document by object and function after it properly adopted the contingency budget at the May 22, 2007 meeting.

     A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  The petition was served only upon the board (through the district clerk) and the superintendent was not personally served.  Accordingly, the appeal is dismissed as to the superintendent.

     The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Respondent board adopted the contingency budget on May 22, 2007.  The motion contained language indicating the projected percentage increase in total spending for the school year, as required pursuant to Education Law §2023(4)(c).  Although the contingency budget document is undated, the business official avers that it was prepared on May 30, 2007, and respondents submitted a copy with their answer.  Accordingly, the only relief requested by petitioner has already occurred.

     As I noted in the previous Appeal of Hubbard (43 Ed Dept Rep 3, Decision No. 14,898) (“Hubbard I”), there is no requirement to provide a line-by-line budget to identify non-contingent expenditures.  Respondent board, however, needs to adopt a contingency budget with “the same degree of specificity, by both function and object, that is required by Education Law §1716 for budgets that are presented to the voters, in order that district residents may have a full understanding of revenue and expenditures, and may be able to examine any expenses that might be non-contingent.”  In this instance, at the board meeting, the business official provided an itemized list of $380,671 of non-contingent equipment, and identified an additional $57,520 in non-instructional salaries and $265,000 in non-contingent capital projects.  The composition of those salaries and capital projects, however, do not appear to have been computed.  As I also stated in Hubbard I, a budget that “requires a reader to use outside materials and to perform his own mathematical computations is insufficient.”  I therefore admonish respondent board again to comply with Education Law §1716 in adopting future contingency budgets.  Continued failure of the board to act consistent with law is not acceptable.