Decision No 12,762

(July 27, 1992)

F. Warren Kahn, Esq., attorney for respondent

SHELDON, Acting Commissioner.--Petitioner appeals from actions taken by respondent Lewiston-Porter Central School District to improve certain of its athletic facilities. The appeal must be dismissed.

The World University Games Soccer Organizing Committee designated respondent's school as the venue for the soccer events of the World University Games (the "Games"), scheduled to be held in July 1993. Following such designation, respondent engaged in discussions with the Greater Lewiston-Porter Foundation, Inc. concerning the use of respondent's facilities for the Games, including the construction of new soccer facilities on district property. On February 5, 1992, in the midst of these discussions, petitioner, a resident of respondent's district, commenced this appeal. Petitioner requested that Commissioner Sobol order respondent to call a special district meeting to obtain the district voters' approval of the construction project.

On May 21, 1992, while petitioner's appeal was pending, respondent entered into a five year lease agreement with the Greater Lewiston-Porter Foundation, Inc. whereby respondent leased certain of its premises to the foundation for a fee of one dollar per year, with the understanding that the foundation would make structural and other improvements to the premises for the Games and other events. The lease provided that the foundation would be responsible for all construction expenses and related debt and that "all improvements thereon shall remain the sole property of [respondent]."

Petitioner then brought an application for a stay. On June 9, 1992, Commissioner Sobol issued an order precluding respondent, pending a final determination of this appeal, from implementing the terms of the lease and from permitting any improvements to be made to its property pursuant to the terms of the lease, on the grounds that it did not appear from the record that the property being leased was currently needed for school district purposes or that fair market rental value was given, as required by Education Law '403-a.

On July 7, 1992, respondent adopted a resolution which "canceled and terminated" the lease agreement. Respondent also adopted a second resolution indicating that it would accept "gifts of money and in-kind services" offered by "various individuals, not-for-profit corporations, business corporations and others . . . for the sole purpose of upgrading and upkeep of athletic facilities." The second resolution further provided that "each such gift be separately approved by [respondent] to ensure the complete control and proper use of the said gifts by [respondent] for the sole benefit of the District, its residents and students."

While respondent's cancellation of the lease has rendered the issue of its authority to enter the lease under '403-a academic, there remains the issue whether the improvements to be made to respondent's athletic facilities require voter approval. Petitioner contends that respondent does not have authority to significantly improve the district's athletic facilities without voter approval.

It appears from the record that the proposed improvements to respondent's athletic facilities have been accepted by respondent as a gift from private individuals, corporations and others. Education Law '1709(12) authorizes a board of education to "take and hold for the use of the [district's] schools or of any department of the same . . . any gift, legacy or annuity, of whatever kind . . . and apply the same, or the interest or proceeds thereof, according to the instructions of the donor or testator."

Education Law '1718(1) provides that no board of education shall incur a district liability in excess of the amount appropriated by a district meeting unless specifically authorized by law. However, '1718(2) exempts from such prohibition, state and federal grants in aid, "other gifts which are required to be spent for particular objects or purposes", and insurance proceeds used to repair or replace insured property, and provides that the board of education may appropriate these items "at any time for such objects or purposes." In Matter of Cappa and Motoyama, 11 Ed Dept Rep 128, it was held that a board of education, pursuant to '1718(2), may use insurance proceeds to restore a portion of the original school building and use the remainder to construct a new wing on the existing building without submitting the matter to the district voters for approval. It was noted in such decision that the insurance proceeds were sufficient to cover the cost of construction and that no indebtedness or other funds would be required. Absent some other statute specifically requiring voter approval, respondent would be similarly authorized, pursuant to '1718(2), to appropriate by resolution moneys received as gifts to improve its athletic facilities, provided the gifts are sufficient to cover the cost of the improvements and no indebtedness to respondent would result.

There is no provision of the Education Law that would require voter approval of improvements donated to a school district as a gift. Petitioner cites Education Law '401 in support of his contention that voter approval is required. However, that section concerns voter approval of the designation, or change in designation, of a school site and does not apply to approval of the making of improvements to the athletic facilities of a school district. Under Education Law '2021(8), the voters are authorized to vote a tax upon the taxable property of the school district to "improve" school sites, including athletic facilities. However, since the record indicates that the improvements to the athletic field are to be made by gift to the school district, it is not necessary for the voters to approve such tax. There are no other provisions in '2021 concerning voter approval of improvements to school sites.

There is no indication in the record that respondent will expend school district funds in improving its athletic facilities. Accordingly, I find that the acceptance of such gifts by respondent, without voter approval, is consistent with respondent's authority pursuant to Education Law '1709(12) and '1718(2).

THE APPEAL IS DISMISSED.

END OF FILE

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