Petitioner, as a taxpayer and member of the Board of Education of the Connetquot Central School District ("district"), seeks a determination regarding the expenditure of school district funds by the superintendent ("respondent") while on a contingency budget. The appeal must be sustained in part.

The voters of the district defeated the proposed budget for the 1995-96 school year. As a result, the board of education adopted a contingency budget. In addition, the board of education discontinued the district’s school lunch program.

On or about November 29, 1995, the district received a special legislative grant of $50,000 with a recommendation from the sponsoring legislators that such money be applied to the district’s school lunch program, with the balance to be used in the district's discretion. On March 21, 1996, the board of education reinstated the school lunch program which began operating on April 15, 1996. However, as of April 18, 1996, no part of the grant had yet been spent for the lunch program. This appeal ensued.

Petitioner contends that respondent made impermissible expenditures while operating under a contingency budget. Specifically, petitioner contends that respondent expended funds for the repair of refrigeration equipment in the district’s schools after the district discontinued its lunch program. In addition, petitioner alleges that respondent did not require the district’s secretaries to charge leave for two snow emergency days in January 1996.

Respondent denies that he made any improper expenditures. In addition, respondent contends that the appeal is untimely.

Initially, I will address respondent’s procedural defense. An appeal to the Commissioner must be brought within 30 days after the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The record indicates that the district paid for various repairs to refrigeration equipment more than 30 days prior to the filing of this appeal. Petitioner contends, however, that she did not file this appeal within 30 days because she did not learn of respondent’s actions until March 21, 1996. Although respondent alleges that petitioner should have been aware of these payments as a board member, a memorandum from the district’s assistant superintendent for business dated March 19, 1996, indicates that the board of education may not have been aware of these repairs. Accordingly, I will not dismiss petitioner's allegations regarding these payments as untimely.

Respondent also asserts that the petition is untimely insofar as it seeks review of his actions in allowing district secretaries to be paid for two snow emergency days without charging their leave accruals. Although respondent asserts that his actions in this regard were brought to petitioner’s attention at a board meeting on February 13, 1996, petitioner denies that assertion, and the exhibit relied upon by respondent fails to establish that petitioner was notified at that time that the secretaries were paid for the days in question without being required to use leave days. Accordingly, I will not dismiss the appeal as untimely.

The responsibility for determining what constitutes an ordinary contingent expense lies in the first instance with the board of education (Appeal of Nolan, et al., 35 Ed Dept Rep 139). However, under Education Law "2024, any question concerning a board’s determination of such an expense may be referred to the Commissioner of Education for determination. Generally, an expense may be considered contingent if it is a legal obligation of the district or if it is necessary to maintain the educational program, preserve property or assure the health and safety of the students and staff (Formal Opinion of Counsel No. 213, 7 Ed Dept Rep 153).

Respondent maintains that the repairs to the refrigeration equipment were necessary to preserve the district’s property. There is nothing in the record, however, to indicate that this equipment would deteriorate without immediate repair or that it posed any safety or health hazard. In addition, the district made the repairs to the refrigeration equipment after it discontinued the district’s lunch program. Thus, the repairs were not essential to maintain an ongoing program. Furthermore, the operation of a school lunch program is not deemed to be an ordinary contingent expense (Matter of Germantown Central School Dist. v. Public Employment Relations Board, 205 AD2d 961; Formal Opinion of Counsel No. 213, supra). Accordingly, repairs to the district’s refrigeration equipment are not ordinary contingent expenses.

Although the district received a special legislative grant of $50,000 with a recommendation that it be used to maintain the school lunch program, the board had not decided to restore that program prior to the time the challenged expenditures were made. Moreover, the board was under no legal obligation to use the grant for the school lunch program. Under the circumstances presented, respondent lacked the authority to make repairs to the district’s refrigeration equipment.

Petitioner also contends that respondent improperly permitted secretarial staff to stay home on two snow emergency days without charging leave. Petitioner appears to argue that this amounts to an increase in salary and benefits to nonteaching staff and is not an ordinary contingent expense. The record indicates that the two days in question were snow emergency days in Suffolk County, in which the district is located. Although the collective bargaining agreement contains a provision concerning weather conditions, it does not specifically address the case of a declared snow emergency. Furthermore, respondent asserts and petitioner does not deny that the district’s past practice has always been not to require staff to charge leave in such situation. Accordingly, I do not find respondent’s actions in this regard to be improper.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent refrain from authorizing expenditures for noncontingent expenses when the district is on a contingency budget.

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