Appeal of GREGORY M. MUENCH from action of the Board of Education of the Central Square Central School District regarding a tax levy.

Decision No. 15,397

(April 18, 2006)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Craig M. Atlas, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the adoption of the tax levy for the 2005-2006 school year by the Board of Education of the Central Square Central School District ("respondent"). The appeal must be dismissed.

At a special meeting on August 24, 2005, respondent voted to adopt a proposed tax levy and executed tax warrants for the 2005-2006 school year. This appeal ensued. Petitioner's request for interim relief was denied on September 21, 2005.

Petitioner contends that respondent failed to modify the tax levy to reflect an increase in the district's estimated 2005-2006 State aid as provided for in the State budget for the 2005-2006 State fiscal year (Chapter 53, Laws of 2005) in violation of the Real Property Tax Law and the determinations in Appeal of Muench (43 Ed Dept Rep 419, Decision No. 15,039 ["Muench I"]) and Appeal of Muench (44 Ed Dept Rep 398, Decision No. 15,210 ["Muench II"]). The estimate of State aid used by respondent for development of the district's 2005-2006 budget was $31,022,883. However, the enacted State budget provided for an estimated $31,813,456 in State aid to the district. Petitioner contends that the $790,573 in additional State aid should have been applied to reduce the tax levy, and requests that I order respondent to recalculate the tax warrants accordingly and take appropriate action in response to respondent's and the superintendent's alleged disregard of prior Commissioner's decisions.

Respondent claims that petitioner fails to state a claim upon which relief can be granted, that the appeal is moot because there is no mechanism for returning taxes and that it would be burdensome and disruptive to recalculate the tax levy. Respondent also contends that its decision not to use the exact amount of total State aid from the State's March 30, 2005 projection in calculating its tax levy had a rational basis, did not violate any laws, and was not arbitrary or capricious.

Respondent contends that the appeal is moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). Respondent argues that the 2005-2006 taxes were already due by the time the parties had submitted all the necessary papers in this appeal. However, "[i]t is settled doctrine that an appeal will, nevertheless, be entertained where, as here, the controversy is of a character which is likely to recur not only with respect to the [same] parties . . . but with respect to others as well" (East Meadow Community Concerts Ass'n v. Bd. of Educ., Union Free School Dist. No. 3, County of Nassau, 18 NY2d 129, 135; Muench I; Muench II; Appeal of Student Suspected of Having a Disability, 38 Ed Dept Rep 796, Decision No. 14,145). Accordingly, I decline to dismiss this appeal as moot because it raises important legal issues concerning the proper use of State aid projections in the preparation of tax warrants that affect all districts and taxpayers statewide. Moreover, it is the same issue that petitioner raised and I sustained in Muench I and Muench II.

Petitioner alleges that respondent, in calculating and issuing the tax levy, has disregarded the holdings in Muench I and Muench II by failing to use the State aid projection for the district provided by the State at the time of the enacted State budget. Respondent alleges that it has endeavored in good faith to follow the holding in these decisions. Respondent alleges that when it submitted its budget to the voters, it based its State aid estimate on the State's March 30, 2005 projection with certain adjustments and had no reason to change the amount in August when it set the tax rates. However, respondent contends that the State's aid projection is only an estimate; that the actual amounts of certain types of State aid that the district will ultimately receive depend on such factors as changes in enrollment, utilization levels, and the expenses actually incurred by the district; and that the district may consider these factors when developing its proposed budget.

Petitioner appears to interpret the holdings in Muench I and Muench II as requiring a board of education, in calculating the tax levy and issuing the tax warrants, to always use the exact amount of State aid projected for the district by the State at the time of the State budget for a given fiscal year. However, contrary to such interpretation, those decisions require a board of education to use the best estimate of State aid that is reasonably available at the time the tax warrant is calculated and issued. If a board of education deviates from the State aid projections, it must have a satisfactory reason for doing so. Respondent's determination must be rational, reasonable and consistent with law (Appeal of Gorman, 43 Ed Dept Rep 32, Decision No. 14,906).

The difference between the State aid projected for the district in the enacted 2005-2006 State budget ($31,813,456) and the State aid estimate used by respondent for development of the district's 2005-2006 budget ($31,022,883) is $790,573. Respondent explains that $236,230 of this amount is accounted for by BOCES aid, the difference between the State's projection of $1,485,027 and the district's estimate of $1,248,797. Respondent states that the district spent less on services purchased from BOCES during the 2004-2005 school year than it did in the 2003-2004 school year, and anticipates that it will receive less BOCES aid in 2005-2006 than included in the State's projection.

Respondent also contends that the State's projection included $86,953 in growth aid, which is based on a projected increase in the district's enrollment. However, respondent states that the district's more current estimate of student enrollment indicates that the district will not ultimately be eligible to receive any growth aid for the 2005-2006 school year, and provides a copy of the district's property tax report card which projects no increase in public school enrollment. Petitioner offers no evidence to dispute respondent's contentions concerning BOCES Aid or growth aid.

Finally, the State budget projections reflect aid for universal pre-kindergarten and for early grade class size reduction, in the amount of $214,320 and $214,904, respectively. Respondent asserts that under the Uniform System of Accounts prescribed by the State Comptroller for required use by school districts, some of the items involved are not included in the district's general fund budget. As respondent asserts, grant money, including aid for universal pre-kindergarten and early grade class size reduction, is accounted for separately and should not be included in the aid total which is used to calculate the district tax levy.

These four aid categories account for $752,407 of the $790,573 difference. The remaining difference of $38,166 is attributable to minor differences in operating, software, library materials and textbook aids. I therefore conclude that petitioner has failed to meet his burden of proving that respondent's determination of estimated State aid that was used to calculate its 2005-2006 tax levy was arbitrary, capricious or contrary to law.

THE APPEAL IS DISMISSED.

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