Authorizing School Construction - The Authorization Process - Reference Guide #A.9
Each capital construction project proposed in a facility owned or leased by a school district or BOCES requires an appropriation of funds and therefore, must be properly authorized. This authorization, typically, is approval of a specific object and purpose by the voters at the annual meeting or at a special meeting (Education Law, Section 1718, subdivision 1). Note, however, that in April 1986 Education Department Counsel permitted Boards of Education to authorize an architect or engineer to prepare final plans and specifications for (only) reconstruction projects prior to authorization of the project by the voters. In this way, preparation of final plans and specifications need not wait until after the annual meeting and submissions for review can avoid the busy spring months. Approval of reviewed projects will occur upon notification of voter approval of the project.
School district meetings must be called in accordance with Education Law, Section 2003, and 2007, which requires 45-day notice of the meetings. Additionally, Section 416, subdivision 7, requires that in other than the Big Five City districts no proposition for a new schoolhouse or an addition to a present schoolhouse, may be submitted more than twice during a twelve-month period and at least 90 days must elapse between votes.
In a BOCES, authorization of a capital construction project in a facility owned or leased by the BOCES may be by board resolution; however, voter approval is required for the acquisition of buildings, sites, or additions thereto.
Exceptions to Voter Authorization Requirements
Circumstances discussed below do not require voter authorization.
- Insurance Recoveries - may be expended for repair or replacement of damaged or destroyed property by resolution of the board.
- Donations (design, labor, materials, funds) - may be expended by resolution of the board when the entire cost of the project is covered by donations (Education Law, Section 1718, subdivision 2). If any expenditure of district funds is anticipated, then the project must be voted.
- Emergencies - costs for mitigation activities and recovery activities necessitated by a sudden and unforeseen emergency, including a man-made or natural disaster or other event which requires immediate action to preserve property or protect public safety, are considered ordinary contingent expenses. Such activities may be advanced by a resolution of the board declaring that the costs for the activities are contingent and do not require authorization.
Emergencies are defined by the General Municipal Law (Section 103.4) as an accident
or other unforeseen occurrence or condition affecting public buildings, public
property or life, health, safety, or property. The Local Finance Law (Section
29.00) defines an emergency as epidemic, conflagration, riot, storm, flood, earthquake,
or other unusual peril to the lives and property of citizens. Various opinions
of the State Comptroller listed below lend further definition to the conditions
of an emergency.
- The conditions must arise from an accident or other unforeseen occurrence or condition (Op. St. Com. 60-905)
- The condition must require immediate corrective action which cannot await execution of proper bidding procedures (Op. St. Com. 60-905, 81-224)
- The condition cannot arise as a result of deterioration or dilatory (foot dragging) action (Op. St. Com. 60-905; 78-780)
- If work cannot be commenced within the time it could have been bid and started, then no emergency would have existed.
- A true emergency really only dispenses with the necessity to advertise for bids, since in most situations, if not all, some sort of specifications will have to be prepared as to exactly what work is to be performed. Therefore, an emergency does not exist. (Op. St. Com. 69-1073, 74-339)
Key elements of the definition of a public emergency are that an emergency results from an unforeseen occurrence, and that it requires immediate corrective actions, but only in the form of emergency repairs. Mitigation measures to correct an emergency are needed immediately and are temporary in nature. They are not capital construction in the usual sense, and do not require approval of the Commissioner. Costs associated with the mitigation activities are ordinary contingent expenses.
An emergency ends upon completion of the mitigation activities. Next comes the recovery period which may, and probably will, involve capital construction. Any capital construction associated with the recovery must be properly planned, developed, authorized, and advanced as any other capital construction project. As with any capital construction project affecting health and safety, approval of plans and specifications for the recovery project and issuance of a building permit by the Commissioner is required before construction starts.