Ed Management Services

Budgeting Handbook

Appendix G

Formal Opinion of Counsel No. 213 (1967)



July 6, 1967


TO: City, Village and District Superintendents of Schools Supervising Principals

Since Formal Opinion of Counsel #93 (1961) with re-spect to the question of the powers of a board of educa-tion to levy taxes for certain purposes in the event the voters of a district have refused to approve a proposed budget, there have been changes in the statutes and a number of additional questions have arisen. The items listed in the earlier letter have been included in this one.

In this connection, section 2023 of the Education Law reads as follows:

"'2023. Levy of Tax for certain purposes without vote. 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 be received for that purpose, or if they shall ne-glect or refuse to vote the sum estimated neces-sary for ordinary contingent expenses, the sole trustee, board of trustees, or board of education may levy a tax for the same, in like manner, as if the same had been voted by the qualified voters."

It is to be observed with regard to teachers' salaries that the board of education has an absolute discretion. Reference in this connection should be made to subdivision 16 of section 1709 of the Education Law, which is as follows:

'1709, subd. 16. To contract with and employ such persons as by the provisions of this chapter are qualified teachers, to determine the num-ber of teachers to be employed in the several departments of instruction in said school, and at the time of such employment to make and de-liver to each teacher a written contract as re-quired by section three thousand eleven of this chap-ter, except as otherwise provided by sections three thousand twelve and three thousand thirteen; and employ such persons as may be necessary to supervise, organize, conduct and maintain athletic, playground and social center activities, or for any one or more of such purposes; and to adopt rules and regulations gov-erning the excusing of absences of all teachers and other employees and for the granting of leaves of absence to such employees either with or without pay. The regular teachers of the school may be employed at an increased compensation or otherwise, and by separate agreement, written or oral, for one or more of such purposes.

Consequently, a board of education may determine for what purposes teachers are needed, how much they are to be paid and what the terms and conditions of employment are to be, including, of course, providing for leaves of absence. This applies whether such teachers are employed for regular school service, full or part-time, summer school, adult education or for special programs of any kind, such as the recently authorized driver education on Saturday (L. 1967, ch. 654).1 In each of these cases there need only be a determination by the board of education that such services are necessary.

The question of what is an "ordinary contingent expense," however, tends to be more complicated. The following are ordinary contingent expenses:

I. Legal expenses

  1. Debt service-interest and principal
  2. Judgments
    1. Courts
    2. Orders of Commissioner of Education
  3. Other Legal obligations
    1. Social Security and other payroll taxes and assessments
    2. Preexisting contractual obligations.

II. Expenditures specifically authorized by statute

  1. Transportation
  2. Textbooks for grades ,** including summer school (Educ. L., '701, subd 3, see Formal Opin-ion No, 181).
  3. Supplies for sale, rental or loan to pupils (Educ, L., '701, subd 5).
  4. Expenses in connection with membership in N.Y.S. School Boards Association, Inc. within this State (Educ. L., '1618).
  5. Convention and conference expenses (Gen. Mun. L., '77-b).
  6. Youth bureaus; recreation and youth service projects; and other youth programs (Exec. L., ''422, 423; but not under Gen. Mun, L., ''95, 244--b, which require authorization by voters)
  7. District's share of services provided by a Board of Cooperative Educational Services (Educ. L., '1958)
  8. Health services (Educ. L., '912)
  9. Private, Federal or State donations not involving expenditure of local money (Educ. L., '1718, subd 2)
  10. Nursery school (Educ. L., '1712, subd 2)
  11. Accident insurance for pupils (Educ. L., '1709, subs 8-a, 8-b)
  12. In-service training for teachers (Educ. L., '1709, subd 32)
  13. Child Nutrition Prograns

2. Eye safety devices (Educ. L., '409-a)

* Maximum distance raised to 15 miles by Chapter 755 of the Laws of 1974. Now 50 miles for handicapped students since amendment by Chapter 853 of the Laws of 1976. This was amended to include transportation for field trips, interscholastic athletics, co-curricular activities and transportation to and from regular school.

** Section 701 was amended by Chapter 587 of the Laws of 1973 to include textbooks in grades K-12.

I. Other items necessary to maintain the educational program, preserve property and assure the health and safety of students and staff. The following is a partial list of such items deemed to be included in this category as an ordinary contingent expense:

  1. Necessary travel expenses of board members and employees on official business
  2. Amount necessary to pay for necessary legal services
  3. Instructional supplies for teachers' use (regard-less of program)
  4. Necessary salaries for the necessary number of nonteaching employees. This not only applies to custodial and maintenance personnel, except cafeteria employees, but also to all other non-teachers such as the business manager and clerical personnel. Salary increases or increments may not be provided for these employees unless it is impossible to assure qualified personnel for the minimum service, in which case these employees may be paid necessary amounts.
  5. Fuel
  6. Water
  7. Light and power
  8. Telephone
  9. Use of school buildings for the purpose of teachers' meetings and PTA meetings with school--connected purposes. These do not include pro-grams of entertainment or of a social nature
  10. Emergency repairs of school plant
  11. Maintenance of necessary sanitary facilities
  12. Necessary expenditures for complying with Regulations of the Commissioner of Education pertaining to such items as fire alarm systems and fire escapes.
  13. Temporary rental of essential classroom facilities
  14. Expenses for capital outlay are not ordinary contingent expenses. However, certain expenses, such as for emergency repairs, or to equip a classroom or classrooms where essential to house additional students, would be deemed ordinary contingent expenses. This does not include replacement of equipment, however.
  15. Required civil defense equipment
  16. Materials used in classes by students where uniformity is essential to the program or to preserve health and safety (chemicals, etc,).
  17. Newspapers and periodical subscriptions for libraries and classroom use where essential for instruction or to preserve continuity of sets.
  18. Options on land where the price of the option is nominal.
  19. Expenditures necessary to advise district voters concerning school matters.
  20. Preliminary plans and specifications needed to submit propositions to voters.

The following is a partial list of items not deemed to be an ordinary contingent expense:

  1. Fee for evaluation of school system by the Middle States Association of Colleges and Secondary Schools.

  2. Fees for surveying school system by various individuals, groups, or organizations.

  3. Rental of office equipment, computers, etc..

  4. Use of school buildings and grounds by outside organizations except where there is no identifiable extra cost to the district or such cost is fully paid by a donation before the activity occurs.

  5. Capital expenditures, except in an emergency

  6. * Transportation and maintenance of interscholastic athletic teams

  7. Pupil uniforms whether for athletic activities or otherwise


  1. *** New library books

* Chapter 436 of the laws of 1997 defines costs related to interscholastic athletics, field trips and co-curricular activities as ordinary contingent expenses.

** Since the issuance of Formal Opinion of Counsel No. 213, the law has been amended rendering this statement obsolete. Section 1709, subdivision 22, now provides for the continued operation of a school food service program without "voter approval".

*** Chapter 775 of the laws of 1992 defines the purchase of library books as ordinary contingent expenses.

If a controversy arises as to the application of what is an ordinary contingent expense as far as some particular item is concerned, an appeal lies to the Commissioner of Education under section 310 of the Education Law. See section 2024 of the Education Law, which reads as follows:

§2024. Reference to Commissioner of Education. -

If any question shall arise as to what are ordinary contingent expenses the same may be referred to the Commissioner of Education, by a statement in writing, signed by one or more of each of the opposing parties upon the question, and the decision of the commissioner shall be conclusive.

Last Updated: June 26, 2009