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Decision No. 15,884

Appeal of LAVERNE HANSEN from action of the Board of Education of the Goshen Central School District regarding a school district budget and election.

Decision No. 15,884

(March 2, 2009)

Shaw, Perelson, May and Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals certain actions of the Board of Education of the Goshen Central School District (“respondent”) regarding the 2008-2009 school district budget and election.  The appeal must be dismissed.

On May 20, 2008, the district’s voters defeated the proposed budget by a margin of five votes, 1,105 in favor to 1,100 against.  Respondent presented a second proposed budget to the voters on June 17, 2008, which the voters approved by a margin of 567 votes, 1,714 in favor to 1,147 against.

Petitioner asserts that respondent illegally calculated the contingency budget and thus misinformed voters about the difference between the proposed budget and the contingency budget that would be imposed if the budget were defeated.  He contends that an increase in administrative salaries is primarily responsible for the increased budget and related decrease in educational activities, and that respondent failed to disclose this information to voters.  He further contends that respondent improperly used district materials and personnel to increase parental awareness about the budget resulting in a higher voter turnout for the second budget vote, and failed to allow sufficient time for the opposition to prepare informational documents.  Petitioner seeks to rescind the pay increases for administrative staff approved in the budget.  He also seeks an investigation into administrative salary increases for the last two years and an advisory opinion regarding ballot propositions.  Petitioner’s request for interim relief was denied on July 16, 2008.

Respondent denies any misconduct, asserts that the administrative component of the budget includes much more than salaries, and maintains that the contingency budget calculations complied with Education Law §2023.

On July 27, 2008, petitioner served a “rebuttal” to respondent’s affidavit in opposition to his stay request, for which there is no authority under the regulations.  Moreover, neither this document nor petitioner’s subsequent “rebuttal,” served August 30, 2008, were verified.  A reply shall be verified in the manner set forth for the verification of an answer (8 NYCRR §275.5; Appeal of a Student with a Disability, 48 Ed Dept Rep 171, Decision No. 15,828).  Therefore, I have not considered either of petitioner’s unverified “rebuttals.”

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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  To the extent that petitioner sought a stay to prevent the implementation of salary increases for district administrative staff in the approved budget, petitioner’s request for interim relief was denied on July 16, 2008 and no further relief can be granted.[1]

Petitioner asserts that respondent illegally misstated the percentage increase in the contingency budget for the 2008-2009 school year on the budget notice required by Education Law §2022(2-a).  He contends that, whereas Education Law §2023 limits the increase in a contingency budget over a prior year’s budget to the lesser of 4%, or 120% times the consumer price index (which for this period was 2.8%), respondent stated the increase as 4.78%.  Accordingly, petitioner argues that the 4.78% increase exceeded the legal limit of the lesser of 4% or 3.36%, and he argues that this materially affected the outcome of the election.

Petitioner, however, misapprehends the law.  Education Law §2023(4)(a) provides:

The contingency budget shall not result in a percentage increase in total spending over the district’s total spending under the school district budget for the prior school year that exceeds the lesser of: (i) the result obtained when one hundred twenty percent is multiplied by the percentage increase in the consumer price index ...; or (ii) four percent (emphasis added).

Section 2023(4)(e)(v) defines “Total Spending” as the “total amount appropriated under the school district budget for the school year.”  However, in calculating total spending, §2023(4)(b) mandates that respondent disregard several categories of expenditures, such as emergency, nonrecurring or capital expenditures, among others.

Thus, to determine the increase in spending for the 2008-2009 school year in the event of a contingency budget, respondent starts with the 2007-2008 adopted budget minus the 2007-2008 mandated exclusions to determine total spending for the prior year, and then multiplies that by the lesser of 4% or 3.36%.  Having determined the prior year’s base, respondent then adds the legal exclusions for the 2008-2009 school year to calculate how total spending authorized under the proposed budget would compare with a contingency budget for 2008-2009.  The purpose of the budget notice requirement under Education Law §2022(2-a)(a) is to compare the impact of the proposed budget with the impact of a contingency budget.  The 4.78% contingency budget increase for the 2008-2009 school year reported on the budget notice in this case accurately reflects the impact of a contingency budget.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Petitioner has failed to prove that respondent violated Education Law §2023 or any other budget provisions.  On the record before me, I cannot conclude that respondent improperly calculated the contingency budget or the administrative component of the budget in violation of the Education Law.  Nor has petitioner proved that any alleged violations affected the outcome of the election.

In light of this disposition, I need not address petitioner’s remaining allegations.  Finally, I note that it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of L.A., et al., 46 Ed Dept Rep 450, Decision No. 15,561; Appeal of Vaught, 46 id. 398, Decision No. 15,544; Appeal of Pochat, 45 id. 343, Decision No. 15,342).



[1]  Petitioner contended that respondent’s affidavit in opposition to his stay request was untimely, and therefore I should not have accepted it and accepted as true the allegations in his petition.  The petition was served on Thursday, July 10, 2008 and respondent timely served its affidavit on Tuesday, July 15, 2008, three business days later, in accordance with §276.1 of the Commissioner’s regulations.