BOARD OF EDUCAION RESPONSIBILITY FOR THE DETERMINATION OF ORDINARY CONTINGENT EXPENSES
In all school districts of the state school budgets are determined by the qualified voters of the school district. In the event the voters reject a proposed budget, the board of education is empowered to levy a tax sufficient to defray the cost of those items specifically authorized by statute, and the cost of those items determined by the board to constitute "ordinary contingent expenses." In addition, Sections 2023 and 2023-a of the Education Law place a cap on the tax levy. The administrative component of the budget is also subject to a cap.
Therefore, even if the item is an ordinary contingent expense, the total amount of the administrative component and the amount of the tax levy to support a contingency budget may not exceed the caps set forth pursuant to the following formulas:
The contingency budget shall not result in a tax levy greater than the tax levied for the prior school year.
In addition to this limitation, the administration component of a contingent budget may not comprise a greater percentage of the contingency budget, exclusive of the capital component, than the lesser of: (1) that percentage in the prior year's budget; 0r (2) that percentage in the last defeated budget presented for the upcoming year.
After assuring that the budgetary and tax levy "caps" are adhered to, the board of education must follow some basic guidelines. The underlying rule is found in Education Law, Section 1718, which reads as follows:
"Section 1718. Limitation upon expenditures
1. No board of education shall incur a district liability in excess of the amount appropriated by a district meeting unless such board is specially authorized by law to incur such liability."
The exceptions from this basic rule are contained in Section 2023 of the Education Law, Levy of Tax for certain purposes without vote, which reads as follows:
"1. If the qualified voters shall neglect or refuse to vote the sum estimated necessary for teachers' salaries, after applying thereto the public school moneys, and other moneys received or to be received for that purpose, or if they shall neglect or refuse to vote the sum estimated necessary for ordinary contingent expenses, including the purchase of library books and other instructional materials associated with a library and expenses incurred for interscholastic athletics, field trips and other extracurricular activities and the expenses for cafeteria or restaurant services, the sole trustee, board of trustees, or board of education shall adopt a contingency budget including such expenses and shall levy a tax, subject to the restrictions as set forth in subdivision four of this section and subdivision eight of section two thousand twenty-three-a of this part, for the same, in like manner as if the same had been voted by the qualified voters, subject to the limitations contained in subdivisions three and four of this section.
2. Notwithstanding the defeat of a school budget, school districts shall continue to transport students to and from the regular school program in accordance with the mileage limitations perviously adopted by the qualified voters of the school district. Such mileage limits shall change only when amended by a special proposition passed by a majority of the qualified voters of the district. In cases where the school budget is defeated by such qualified voters of the school district, appropriations for transportation costs for purposes other than for transportation to and from the regular school program, and trasnportation that would constitute an ordinary contingent expense pursuant to subdivision one of this section, shall be authorized in the budget only after approval by the qualified voters of the district. "
The reason for these provisions is found in the State Constitution which requires, as interpreted by the courts, that the schools of the state must be kept in operation at all times so that the youth of the state may have access to uninterrupted education.
The responsibility for determining which items in a school district budget fall under the concept of "ordinary contingent expenses" rests with the board of education.
Where individual citizens disagree with such a determination of a board of education, they are authorized to present the question to the Commissioner of Education who then pursuant to Section 2024 of the Education Law, determines the issue.
The purpose of this Appendix is to summarize the relevant statutory provisions and the general information contained in Formal Opinion of Counsel, No.213, dated July 6, 1967 (which replaces No.93, dated April 28, 1961). A copy of No.213 is attached. This opinion, in general terms, sets forth the rationale behind pertinent decisions of Commissioner of Education over the years and statutory provisions, as they affect the determination of the term " ordinary contingent expenses."
While it is not possible in this document to answer every question which may be raised concerning contingent budgets, it is hoped that it will help to clarify those questions most frequently asked.
OPTIONS OPEN TO THE BOARD OF EDUCATION
There are several options open to a board when its budget is defeated, such as:
- 1. The board may prepare and adopt a contingent budget without going back to the voters.
- 2. The board may present only one additional revised budget at a special district meeting.
Many misconceptions have arisen concerning defeated school budgets. The most common of these, together with comments about each, are as follows:
Misconception No. 1
"The Commissioner of Education imposes a budget if the voters continue to turn the budget down." The Commissioner does not have this authority. It is the responsibility of the board of education to adopt a contingent budget, if the voters refuse to pass the budget.
Misconception No. 2
"A special meeting must be called in the event of a defeated budget." This is at the discretion of the board of education, unless a petition for such a meeting is properly filed in accordance with Section 2008 of the Education Law.
Ordinary Contingent Expenses
When a board of education is faced with adopting a contingent budget after the voters have refused or continued to refuse to approve the budget, the crucial question is the determination of what constitutes ordinary contingent expenses. In general, except for those items over which the statutes themselves either provide mandates for or give discretion to the board of education, these may be considered those expenditures deemed to be absolutely necessary to operate and maintain schools. The emphasis should be on those expenditures considered essential to maintain an educational program, preserve property, and assure the health and safety of students and staff. The board of education must exercise its best judgment in determining what those minimum expenditures shall be.
Formal Opinion of Counsel No.213 specifically discusses provisions for teachers' salaries as authorized by Section 1709, subdivision 16, of the Education Law. It also divides ordinary contingent expenses into three categories: (1) legal expense; (2) expenditures specifically authorized by statute; and (3) other items necessary to maintain the educational program, preserve property, and assure the health and safety of students and staff.
Examples are given in Opinion 213 of some expenditures which are not considered to be acceptable ordinary contingent expense items. In general, these may be defined as those items which are not required to maintain a minimum educational program, to preserve property, and to assure the health and safety of pupils and staff. Excluded are those expenditures which, by law, only the voters can authorize. Example of the latter are the purchase of new equipment, and budgetary subsidies for school food service.
There are certain items of expenditure which require a fuller explanation than was possible to give in Opinion 213. These are discussed below:
Public Employees Fair Employment Act (Taylor Law)
- Agreement entered into under the provisions of this Act must be honored by the board of education.
- In the case of noninstructional employees, the board of education is still required to determine the number necessary under a contingent budget, as indicated in Opinion 213, page 5, item 4. If the salaries for the required number of these employees have been determined by agreements under the Public Employees Fair Employment Act, such salaries are an ordinary contingent expense.
- The cost of transportation for; (1) pupils to and from regular school programs in accordance with mileage limitations previously adopted by the qualified voters and, (2) interscholastic athletics, field trips and other extracurricular activities are ordinary contingent expenses. Mileage limits for pupils to and from regular school programs shall change only when amended by a special proposition passed by a majority of the qualified voters of the district. Transportation of nonpublic school pupils beyond the mileage limitation is an ordinary contingent expense up to fifteen miles. If transportation is provided to public school pupils attending public schools other than BOCES facilities within the district for distances in excess of fifteen miles, transportation for nonpublic school pupils attending nonpublic schools within the district is an ordinary contingent expense up to the maximum distance such public school pupils reside from the schools they legally attend and to which they are transported. If public school pupils are transported outside the district, under tuition contract, the rule is similar. (Education Law 305.14)
- Shuttle service between public schools for instructional purposes is an ordinary contingent expense.
- Transportation, pursuant to article 89, for all handicapped children living up to and including 50 miles is an ordinary contingent expense.
If no separate proposition to raise money for the public library had been included in the budget vote, or if the amount requested had been greater than that included in the prior year's budget, the same amount approved by the voters in the year prior to defeating the budget becomes an ordinary contingent expense.
Use of School Buildings and Grounds by Outside Agencies
If there is no identifiable expense to the taxpayers, or where such extra costs are paid in advance in full by donations, the board of education may grant the use by outside agencies of school buildings and grounds. This does not apply to public school activities.
The cost of equipment does not normally constitute an ordinary contingent expense, as indicated in item 14 on page 5 of Opinion 213. This is true regardless of whether the equipment is to be purchased, leased or lease-purchased in accordance with the provisions of Section 1725 of the Education Law. Where equipment is to be lease-purchased pursuant to Section 109-b of the General Municipal Law, a separate referendum is required.
When appropriations for free pupil supplies have not been approved by the voters, it becomes the responsibility of the parents or guardians to see that their children are provided with the items needed to attend upon instruction, as required by the Compulsory Education Law. The responsibility of the school district, on the other hand, is to determine what supplies are considered pupil supplies as contrasted to those which should be called teacher supplies.
Pupil supplies should be deemed to be those supplies that are essentially retained by the pupil such as writing pads, looseleaf binders, pencils, rulers, etc. and other supply items required by the pupil and which are readily available from sources other than the school district; all other supply items required by the educational program approved by the board of education but which are not readily available from sources other than the school district should be deemed to be teacher supplies and therefore a contingent expense.
The following is an illustrative list of supplies which may be deemed to be pupil supplies and which are readily available from sources other than the school district:
- lined composition paper, excluding wide lined primary paper
- typing paper
- carbon paper
- pencils, excluding primary pencils and special testing pencils
- rulers, yardsticks
- notebooks, but not workbooks which are considered textbooks
- gym shorts
- other personal athletic needs
- crayons, excluding oversize primary crayons
- felt tipped pens
- paper clips
- rubber bands
- index cards, 3 x 5, 5 x 8
Of primary concern in the determination of pupil supplies is that the list be a reasonable one and that the parent be granted the option of purchasing such items from sources other than the school.
In the event that the parent or guardian opts to purchase such supplies from a source other than the school, no charge may be imposed by the district.
The Commissioner in Matter of Hasslacher (Decision 9459) has determined that the school district need not afford parents the opportunity to make a piecemeal selection of items they may wish to purchase but may instead offer any or all supplies at a given total price.
The requirements as to budget format and availability of copies to voters applicable to budgets presented at the annual district meeting also apply to budget-related propositions for presentation at special meetings. Sections 1608, 1716 and 2601-a of the Education Law require that copies of proposed budgets be made available to residents during the seven days prior to the budget hearing (presentation) and fourteen days prior to the annual meeting/budget vote. This requirement also applies to budget proposals for presentation at special meetings.