Decision No. 12,901

March 29, 1993

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Florence T. Frazer, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from actions taken by respondent Board of Education of the Malverne Union Free School District relating to its adoption on July 14, 1992 of an austerity budget. He also challenged the board's handling of three propositions at a special district meeting on August 25, 1992. The appeal must be dismissed.

On June 9, 1992, at the annual district meeting, the voters defeated respondent board's proposed budget of $21,581,852. Included within the defeated budget proposal were expenses regarded by the district as ordinary contingent expenses of $21,353,595, and non-contingent expenses of $228,257 for student activities, interscholastic sports and equipment.

On July 14, respondent board adopted an austerity budget of $21,405,475, which included all the expenses considered contingent in the original budget, plus $51,880 for the hiring of a special education teacher and payment of increased insurance premiums, which are not at issue here. At that same meeting, the board was presented with a number of petitions signed by district residents urging that the original school budget be resubmitted to the voters. The board did not act on that request.

On August 4 the board decided to hold a special district meeting and place three separate propositions before the voters: (1) a proposition of $132,505 for interscholastic athletics, student activities and field trips; (2) a proposition of $95,752 for the purchase of certain equipment and (3) a proposition of $390,000 to replace a roof on a middle school building. The voters approved all three proposals at the August 25 special meeting. This appeal followed.

Although he does not claim misconduct with respect to the actual voting at the special meeting, petitioner raises numerous questions and objections regarding the budget process. He contends that the austerity budget was improper for several reasons, including the inclusion of three administrative positions which are not mandated by law. He also appears to claim that the special meeting was illegal, because the petitions presented to the board asked that the original budget be resubmitted, whereas the board decided only to submit certain specific propositions. Petitioner further makes generalized claims that the board has misled the public through various publications, and has not complied with the will of the majority of the district's voters. He asks that I annul the results of the August 25 vote and order the elimination of the administrative positions he claims are not mandated by law.

Respondent counters that the austerity budget was properly adopted, that the board properly resolved to hold a special district meeting, that the special district meeting was correctly conducted and that the three administrative positions challenged by petitioner are allowable in the austerity budget as ordinary, contingent expenses. Respondent also contends that this appeal is untimely, because the petition was not served until October 13, 1992.

As a threshold matter, I will not dismiss the appeal as untimely. Petitioner attempted to file a petition dated September 21, 1992 with my Office of Counsel, which rejected it on September 29, 1992 because it had not been served on respondent. Petitioner then prepared a somewhat different petition and made service on respondent on October 13, 1992. Normally, an appeal must be commenced within 30 days after the decision or act complained of (8 NYCRR '275.16). But because a substantial portion of this appeal deals with the ongoing spending of district funds pursuant to the austerity budget adopted for the current school year, petitioner's claims are in the nature of a continuing wrong (cf., Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 293; Appeal of Town of Smithtown, 28 id. 337; Matter of Baxter and Pickett, 21 id. 610). Thus, the appeal is timely.

With respect to the merits, I find that the district's July 14, 1992 austerity budget was proper in both content and manner of adoption. Petitioner challenges the right of the district to employ an assistant principal, a supervisor of curriculum instruction, and a district supervisor of facilities on the ground that those titles are not mandated in the Education Law. While petitioner is correct that such titles are not mandated, many of the titles typically found in a public school district are not mandated by the Education Law, but are within the authority of the board of education to create, pursuant to Education Law ''1709 and 2023. Where, as here, staffing relating to the instructional program of the school is at issue, such matter is within the sound discretion of the board of education and is not subject to voter approval. Matter of New Paltz Central School District, 30 Ed Dept Rep 300; Matter of Raffone, 13 id. 245; Matter of Feldheim, 8 id. 136.

I also find proper respondent's decision to conduct a special district meeting. Petitioner raises a number of questions about the petitions filed with the respondent board and emphasizes that the petitions asked for a re-vote on the entire budget. Petitioner appears, however, to confuse the authority of the voters to initiate a special district meeting by petition pursuant to Education Law '2008 with the board's authority to initiate such a meeting under '2007. While the board could have simply put the entire original budget proposal up for a second vote, that was not its sole option. Education Law '2007(3)(a) authorizes a board of education to call a special meeting to take "appropriate action" when a budget has been defeated. In addition to a re-vote on the entire budget, a board may on its own initiative put up certain propositions which are supplemental to a contingency budget and which contain non-contingent items which could not otherwise be funded without voter approval (cf., Matter of Galloway v. Saletan, 42 Misc 2d 458, aff'd 20 AD2d 796). Respondent elected to do the latter, and I find that it did so properly.

Although petitioner has also made certain generalized complaints about publicity used in previous budget votes, he raises no specific allegations of misconduct with respect to the August 25 voting nor with the conduct of the meeting itself. As a result, there is no basis for my intervention.

I have examined the other contentions of the parties, including petitioner's complaint about the collective bargaining agreement between the district and its teachers' organization, and find them without merit.

THE APPEAL IS DISMISSED.

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