Decision No. 12,881

(January 21, 1993)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the award by the board of education of additional salary to five school district employees. Petitioner requests that I direct the board to recoup the funds paid to the employees. The appeal must be dismissed.

When the proposed budget for the 1991-1992 school year failed to obtain voter approval, the Board of Education of the Granville Central School District ("respondent") adopted an austerity budget. In January 1992, respondent approved payment of additional salary stipends to five individuals who are not members of a union, and whose salaries were not provided for in a negotiated collective bargaining agreement. In paying the stipends, the board assigned additional duties to those individuals, above and beyond those required by their full-time salaried positions. The record indicates that the business manager was appointed as district clerk; the principal account clerk was appointed to serve as district treasurer; the superintendent of building and grounds was appointed to serve as management planner, with additional duties relating to compliance with the Asbestos Hazard Emergency Response Act for the district; the head auto mechanic was assigned the duties of examiner to comply with Article 19-a of the New York State Vehicle and Traffic Law relating to training, testing and certification of school district bus drivers; and the stenographer to the superintendent was assigned additional duties and given the title of assistant clerk of the board of education. In each case, respondent asserts that the performance of additional duties was necessary to maintain the educational program, preserve property and assure the health and safety of students and staff. Petitioner commenced this appeal by serving respondent's superintendent with a notice of petition in February 1992.

Petitioner contends that since respondent is operating on an austerity budget, it cannot pay additional salaries to employees when such salary is not provided for in a collective bargaining agreement. Therefore, petitioner argues the payment of additional sums of money to the five individuals identified in the petition was improper, and the money should be recouped. Petitioner also contends that the moneys were paid to these employees on January 10, 1992, in advance of board approval on January 16, 1992, and that consequently such payments were improper.

Respondent contends that the amounts paid to the five individuals were not additional salary for the positions they were already filling, but were payments for the performance of new duties which were necessary for the proper operation of school district programs. Respondent also contends that it is authorized and required to appoint a district treasurer and district clerk and to fix appropriate salaries for those positions without voter approval.

Section 2023 of the Education Law authorizes a board of education to adopt what is variously called an "austerity" or "ordinary contingency" budget. The statute provides:

The responsibility for determining what items constitute ordinary contingent expenses lies with the board of education in the first instance. When an appeal is brought pursuant to Education Law '310 to review such a determination, the general rule is:

The rule applicable to salaries for nonteaching employees, as stated in Formal Opinion of Counsel No. 213 (7 Ed Dept Rep 153 [1967]), is that only necessary salaries for the necessary numbers of nonteaching employees may be authorized. The board of education is obligated to limit expenditures to what is considered necessary to permit the school district to function properly.

Pursuant to '2130(3) and (4) of the Education Law, a board of education is required to appoint a district clerk and a district treasurer and is authorized to set salaries for those positions, without voter approval. Accordingly, payments to nonteaching employees for duties performed as district clerk and district treasurer were proper. With respect to the remaining three employees, respondent contends that payment for these additional services was necessary for proper operation of the district's programs. Although petitioner contends that the additional payments were merely an attempt to grant raises to individuals whose salary increases were not provided for in collective bargaining agreements, there is nothing in the record that controverts respondent's position that the additional amounts were paid for duties performed by district employees in addition to those contained in their original job descriptions. Under the circumstances, I cannot conclude that the payments in question constituted impermissible salary increases (which are not allowed as ordinary contingent expenses), as described in Formal Opinion of Counsel No. 213 (7 Ed Dept Rep 153). Because petitioner has not satisfied her burden of demonstrating that the additional payments were improper, the appeal is dismissed.

Apart from the merits, I note that petitioner has not joined any of the five employees whose salary payments are questioned. Because a determination favorable to petitioner in this matter would necessarily affect the interests of these employees to receive compensation, their joinder was required. Petitioner's failure to name and serve the employees as respondents requires dismissal of the appeal on procedural grounds (Appeal of Jacobson, 28 Ed Dept Rep 167).

THE APPEAL IS DISMISSED.

END OF FILE

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