Decision No. 13,328

(January 5, 1995)

Robert W. Linville, Esq., attorney for petitioner

SOBOL, Commissioner.--Petitioner appeals the adoption of a contingency budget by the Board of Education of the New Lebanon Central School District ("respondent board") that authorizes raises for the other named respondents. The appeal must be dismissed.

During the 1993-94 school year, the district employed four non-instructional staff in its central office:

Lisa Kreutziger, elementary secretary

Effective July 1, 1994, Ms. Hicks resigned from her position. Her responsibilities were reassigned to other staff. However, these functions were outside the job descriptions of the other employees. Additionally, the board recognized that Lois Face had been performing the functions of secretary to the committee on special education ("CSE") and committee on preschool special education ("CPSE") although these functions were outside her job description. On July 5, 1994, Lois Face accepted the responsibilities of secretary to the CPSE and payroll clerk for an additional sum of $960. Also on July 5, 1994, Ms. Kreutziger accepted the responsibilities of secretary to the CSE for an additional sum of $618. On July 5, 1994, Ms. Roberts agreed to perform the function of transportation clerk for an additional sum of $716.

On August 5, 1994, because the voters defeated three proposed budgets, the board adopted a contingency budget in the amount of $5,678,497. It included the following raises or other salary stipends:

Principal $1,797

Petitioner asserts any and all stipends amount to pay raises and are, therefore, prohibited while the district is on a contingency budget. Respondent contends non-instructional employees did not receive raises, but instead were given additional payment for the performance of additional job functions. Concerning instructional employees, respondent asserts such raises were authorized.

Before addressing the merits, I will address a procedural matter. The record reveals that petitioner's reply papers contain new material which was not previously set forth in the petition. A reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Appeal of Verity, 31 Ed Dept Rep 485; Matter of Pronin, 27 id. 203). Therefore, I will not consider the material belatedly added by petitioner in the reply to the extent that such material does not respond to new material or affirmative defenses set forth in the answer (8 NYCRR 275.14).

Education Law '2023 authorizes a board of education to adopt what is called an "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. An expense may be considered contingent if it is a legal obligation, is specifically authorized by statute, or is necessary to maintain the educational program, to preserve property or to assure the health and safety of the students or staff (Formal Op of Couns No. 213, 7 Ed Dept Rep 153; Appeal of Parsons, 32 id. 444; Appeal of Epler and Sawester, 13 id. 114).

With regard to non-instructional employees, a board of education may authorize only necessary salaries for the necessary numbers of nonteaching employees (Appeal of Parsons, supra; Formal Op of Couns No. 213, supra). A board of education must limit expenditures to what is considered necessary to permit the school district to function properly (Appeal of Parsons, supra). The record reflects that the additional amounts allocated in respondent's budget for respondents Face and Kreutziger are compensation for the performance of new duties in addition to those contained in their original job descriptions. The record further reflects these services were necessary for proper operation of the district's programs. Accordingly, I find the additional money paid to these employees to be proper.

Petitioner also challenges raises provided to respondents Haley and Schweda, as the school librarian and guidance counselor, respectively. The record indicates that respondents Haley and Schweda are members of the teachers' union and their salaries are established through collective bargaining agreements. Their salaries are, therefore, a legal obligation and any raises afforded these individuals are an ordinary contingent expense of the district (Appeal of Epler and Sawester, supra).

Petitioner misconstrues the law in his contention that respondent board gave improper raises to respondents Obly, Price and Brown as the superintendent and two school principals, respectively. Education Law '2023 authorizes the expenditure of funds for teachers' salaries in an austerity budget. "Teacher" is defined broadly in Education Law '3101 to include the superintendent of schools and principals. Therefore, a board of education has authority to grant salary increases to such instructional administrators during an austerity budget (Appeal of Gleason, 17 Ed Dept Rep 144; Appeal of Reinhardt, 16 id. 448). Accordingly, I find the increases approved by respondent board for the superintendent and two principals to be proper.

I have considered petitioner's remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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