Appeal of the BOARD OF EDUCATION OF THE GREENPORT UNION FREE SCHOOL DISTRICT and SUPERINTENDENT MICHAEL COMANDA from action of the Board of Education of the Oysterponds Union Free School District and Superintendent Stuart Rachlin regarding nonresident tuition.

Decision No. 16,251

(June 13, 2011)

Harris Beach PLLC, attorneys for petitioners, Douglas E. Gerhardt, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondents, Warren H. Richmond, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioner Greenport Union Free School District (“Greenport”) and its superintendent (collectively “petitioners”) appeal the action of the Board of Education of the Oysterponds Union Free School District (“respondent” or “Oysterponds”) declaring null and void a contract for nonresident tuition.  The appeal must be dismissed.

Oysterponds does not have a middle or high school.  Pursuant to Education Law §2040, it contracts with another school district to educate its pupils in grades seven to twelve.[1]  According to Oysterponds' records, on June 21, 1977, the voters approved, by a vote of 214 in favor to 20 against, a proposition to contract for three years to send the district’s pupils in grades seven to twelve to Greenport.[2]  Respondent’s records also show that on March 31, 1981, the voters defeated, by a vote of 237 against to 110 in favor, a proposition “to contract for a period of not less than two and not more than five years ... with Greenport Union Free School District and the Mattituck-Cutchogue Union Free School District, and to provide the necessary transportation ....”

The parties agree that since 1977, pupils in grades seven to twelve from Oysterponds have continuously and without interruption attended school in Greenport.[3]  They further agree that on or about August 11, 2009, both districts entered a three-year contract (“contract”) for the 2009-2012 school years whereby Oysterponds would send its pupils in grades seven to twelve to Greenport.  The District Superintendent (“district superintendent”) of the Eastern Suffolk Board of Cooperative Educational Services (“BOCES”), First Supervisory District, also signed the contract indicating that it was “in compliance with the applicable provisions of Education Law.”

On June 9, 2010, Oysterponds’ president, Greenport’s president and their respective superintendents signed a Memorandum of Agreement (“MOA”) amending the contract to extend its term from July 1, 2009 to June 30, 2014.  This MOA was also signed by the district superintendent.  In July 2010, three individuals who had been newly elected in Oysterponds’ May 2010 school district election were sworn in as members of the board.  On August 17, 2010, the newly composed Oysterponds board voted to declare the contract and the MOA null and void.  This appeal ensued.

Petitioners contend that respondent’s action nullifying the contract and MOA is an illegal, unilateral breach of contract.  They assert that the contract and MOA are authorized by the 1977 proposition and the annual budget vote, which contains a specific budget allocation for tuition payments to Greenport and manifests the voters’ intent.  They also assert that the district superintendent’s signature on the contract and MOA constitutes authorization and approval on behalf of the Commissioner.  They contend that respondent’s actions ignore thirty years of tuition payments to Greenport, violate the terms of the contract and MOA, contravene the authorization and approval of the district superintendent, place an undue financial and educational burden on Greenport and violate public policy.  In addition, they assert that respondent sought and received advice from the State Education Department (“SED”) prior to execution of the contract in 2009 and canceled a proposed voter referendum scheduled for October 2009 based on SED’s advice that no referendum was required.  Petitioners seek a determination that the contract is valid and binding and request an order requiring Oysterponds to adhere to the terms of the contract and MOA.

Respondent asserts that its action nullifying the contract and MOA was undertaken after consultation with legal counsel and was legal and proper because the voters never approved the contract as required under the Education Law.  In addition, respondent’s new president avers that the MOA was hastily undertaken in June 2010 by the outgoing board to obfuscate increasing community sentiments seeking an alternative receiving district.

I must first address a procedural matter.  Respondent neglected to include part of an exhibit with its president’s affidavit concerning the vote on the 1981 proposition.  Since this appears to be an inadvertent omission, I have accepted its late submission.

Turning to the merits, petitioners argue that the Oysterponds’ voters’ approval in 1977 of the proposition to contract for three years constituted authorization for Oysterponds to enter into repeated multi-year contracts with Greenport, including the contract at issue here.  However, neither the plain language of the statute nor the legislative history supports such contention.

Education Law §2040 provides:

1. Any school district may decide by a majority vote of the qualified voters present and voting at a district meeting:

a. To contract for the education of all the elementary pupils of such district in another school district in this state or in any adjoining state, instead of maintaining a home school.

b. To contract for the education of part of the elementary pupils of such district in another school district in this state or in an adjoining state and maintain a home school.

c. To contract for a period of not less than two and not more than five years for the education of all the high school pupils of grades seven to twelve, inclusive, of such district in another school district in this state or in an adjoining state, instead of maintaining a home high school for such grades.

d. To contract for a period of not less than two and not more than five years for the education of some of the pupils of grades seven to twelve, inclusive, of such district in another school district in this state or in an adjoining state provided that such district maintains a home high school for such grades.  Nothing herein shall require a district to enter into a written contract for the education of its high school pupils where the term is for a period of less than two years.

2. Such contract may be made with one or more school districts.  The designation of the school districts with which such contracts may be made shall be made pursuant to the commissioner’s regulations.

Section 174.4 of the Commissioner’s regulations authorizes only the board of education to designate, by resolution, the receiving school district or districts for contract purposes.

In interpreting a statute, the plain meaning of the words govern (New YorkJurisprudence 2d, Statutes, §104).  “Where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” (Matter of Raritan Dev. Corp., et al. v. Silva, et al., 91 NY2d 98, 107; see McKinney’s Statutes §120).

Subdivision 1 of §2040 unambiguously requires voter approval before a sending district, such as Oysterponds, may contract for the education of some or all of its pupils.  Notably, however, the statute distinguishes between the education of elementary pupils in paragraphs (a) and (b) of subdivision 1, and the education of high school pupils of grades seven to twelve in paragraphs (c) and (d). 

However, with respect to contracting for the education of all or some of a district’s high school pupils of grades seven to twelve, the statutory language in §2040(1)(c) and (d) specifically requires the district to obtain voter approval when seeking “to contract for a period of not less than two and not more than five years.”  In other words, the authority to enter into a contract for the education of high school pupils for the duration of two to five years under §2040(1)(c) and (d) requires prior voter approval (seeAppeal of the Bd. of Educ. of East Quogue Union Free School Dist., 43 Ed Dept Rep 385, Decision No. 15,026).

Petitioners urge that the statutory language authorizes Oysterponds to enter into multi-year contracts indefinitely once the district voters approve a single multi-year contract.  Such interpretation would be contrary to the statutory language.  Moreover, a review of the legislative history provides no support for petitioners’ position.  The requirement in §2040(1)(c) and (d) that a contract for high school pupils be “for a period of not less than two and not more than five years” was first added to the predecessor statute to Education Law §2040 in 1942.[4]  In his letter to the Governor’s Counsel urging support of the bill, the sponsoring member of the Assembly attached a letter from the district superintendent at whose suggestion the member had proposed the amendment.  The district superintendent explained that districts that did not maintain high schools had to designate a receiving high school “on a basis of one year at a time” at their annual meetings, which at the time were held on either the first Tuesday in May or the second Tuesday in July.  The district superintendent noted that the annual meeting could occur two to four months after teacher contracts were determined in March and, for those districts voting in July, more than one month after the proposed budget was determined (June 1).  Since there appeared to be some competition among existing high school districts for these non-resident pupils, the district superintendent explained that “a change-over may take place after the teachers have been employed and the budgets already made up.”  Consequently, he continued, high school (receiving) districts “are on a precarious business footing unless the districts are allowed to make contracts in advance for the period suggested in your bill of from two to five years.  Also this is allowed to be done at a special meeting of the district which s[h]ould be held before the contracts for teachers are made out.”

Similarly, in his memo to the Governor recommending approval of the amendment, SED’s Counsel noted that:

In some cases it would be advantageous for both districts to proceed on the contractual basis contemplated by this amendment.  If the receiving district is assured that it will receive the children under a contractual arrangement for a specified period it can make definite plans in the way of an adequate teaching staff and other plant facilities.  Many districts hesitate to do this now because they do not feel safe in expanding their plant facilities when the children may not be in attendance but one year.  Many districts would be willing to give better tuition rates if they could have a term extend over five years.

This legislative history thus indicates that both receiving and sending districts were seeking enhanced stability through long-range planning afforded by long-term contracts.  However, the district superintendent’s letter in particular clearly indicates that the determination to contract required the authorization of the voters at an annual or special meeting.

In this case, on June 21, 1977, Oysterponds’ voters approved a proposition authorizing respondent to enter into a contract for a period of three years.  There is no evidence, however, that the voters authorized the district to enter into the 2009 contract extension or the MOA, or ever authorized the board of education to enter into any multi-year contract for the education of its high school pupils subsequent to the initial three-year contract.    Accordingly, respondent is correct that, because the voters of Greenport did not authorize respondent to enter the three-year contract or the MOA, such agreements are invalid (seeAppeal of the Bd. of Educ. of East Quogue Union Free School Dist., 43 Ed Dept Rep 385, Decision No. 15,026).  The fact that the Oysterponds voters have annually approved school district budgets with specific allocations for tuition payments to Greenport indicates that respondent was authorized to expend district funds for such tuition payments each year, but does not establish that the voters authorized respondent to enter two- to five-year contracts for such purpose.  Therefore, petitioners’ request for an order requiring respondent to comply with the contract and MOA is denied.

This does not mean, however, that in the absence of a contract, the sending district cannot educate its pupils or that the receiving district is not entitled to be compensated for its costs of educating such pupils.  Chapter 946 of the Laws of 1946 added the following sentence to Education Law §2040 regarding the contract period for high school pupils that remains part of the statute to the present:  “Nothing herein shall require a district to enter into a written contract for the education of its high school pupils where the term is for a period of less than two years” (Education Law §2040[1][d]).[5] Moreover, as the Commissioner has previously held, where the sending district is without authority to execute a tuition contract because it lacked voter approval, the rate of tuition for that year is established pursuant to Part 174 of the Commissioner’s regulations, rather than an amount agreed to between the parties in a contract (seeAppeal of the Bd. of Educ. of East Quogue Union Free School Dist., 43 Ed Dept Rep 385, Decision No. 15,026).  Thus, in this case, Greenport may receive remuneration based on the regulatory formula for any year for which there was no valid contract in place because respondent lacked authority to enter into a contract without voter authorization.

Finally, petitioners argue that respondent’s action to nullify the contract and MOA is contrary to the specific direction of SED.  However, to the extent that my determination is inconsistent with any previous interpretations or advice provided by SED staff, I note that I am not bound by such advice in an appeal before me (Appeal of Larry B., 37 Ed Dept Rep 632, Decision No. 13,944; Appeal of Shravah, et al., 36 id. 396, Decision No. 13,760, affdEducation Alternatives, Inc. v. Mills, 175 Misc2d 105 [Sup. Ct., Albany Co. 1997]; Matter of Ceparano, 17 id. 298, Decision No. 9,612).  While the confusion generated by such interpretations is unfortunate, I am constrained to follow the plain language of the statute and past agency precedent and cannot find these contracts to be lawful based on past erroneous interpretations.

THE APPEAL IS DISMISSED.

END OF FILE.