Emergencies – Capital Construction
The public emergency is defined by the General Municipal Law as an accident or other unforeseen occurrence or condition affecting public buildings, public property, or life, health, safety or property. The Local Finance Law 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 lend further definition:
- The conditions must arise from an accident or other unforeseen occurrence or condition (opinion of the State Comptroller, 60-905).
- The condition must require immediate corrective action which cannot await execution of proper bidding procedures (opinion of the State Comptroller, 60-905).
- The condition cannot arise as the result of deterioration or dilatory action (opinion of the State Comptroller, 60-905, 78-780).
- The work associated with correction of the condition is to be limited to emergency repairs (opinion of the State Comptroller, 69-1073).
- A true emergency really only dispenses with the necessary to advertise bids, but in most instances, if not all, some sort of specifications will have to be prepared as to exactly what work is to be performed, or what materials or items or to be purchased and in such situations an emergency does not exist (opinion of the State Comptroller, 79-1073).
From the above, it is clear that the mitigation activities necessary to dispense with an emergency are needed immediately and are temporary in nature. They do not involve capital construction in the usual sense, and do not require approval of the Commissioner. Expenses incurred to mitigate the effects of an emergency are ordinary contingent expenses (opinion of Education Counsel, #213).
A recovery period begins immediately after the mitigation activities associated with the emergency and involves a preservation project to protect further loss or deterioration of the elements of a building to remedy the damages sustained during the emergency, and to return the building to useful condition. The preservation project is capital construction and must be properly planned, developed, authorized, and advanced the same way as any other capital construction. With the advice of the school attorney to assure meeting the tests of what is or is not an ordinary contingent expense, the Board of Education may determine that the costs associated with the preservation project are ordinary contingent expenses.
In no case does an emergency declaration empower a Board of Education to advance a capital construction project without proper authorization and prior approval of plans and specifications by the Commissioner. If work is done without benefit of plans and specifications which have been approved by the Commissioner, there is no building aid.