23 Misc. 2d 337 | N.Y. Sup. Ct. | 1960
In this article 78 proceeding, petitioner, a qualified voter and taxpayer in Union Free School District No. 21, Town of Oyster Bay, claiming that the trustees are violating the duty specifically enjoined upon them by section 1718 of the Education Law, seeks to review their action in over-expending the amount provided in the budget for “ legal services.” As adopted, the budget figure for .such services was $1,100. Legal .services are included in the budget under the heading 1 ‘ G-eneral Control— Code 2.5 ’ Code 2 of the budget was adopted by the voters on June 16, 1959 without discussion and without a separate vote as permitted under subdivision 2 of .section 2022 of the Education Law. On July 7, 1959 the board entered into a retainer agreement with its present attorneys for the sum of $4,000, and on December 29, 1959 approved payment of a bill in the sum of $2,135 .submitted by the attor
The petition alleges on information and belief that there are not enough funds in either Code 2 or in the subitem ‘1 legal services ” to cover the $1,135 excess which the board authorized to be paid. The return and affidavits submitted by the board show, however, that transfers were made from Code 3 to the “ legal services ” item, and that on the basis of such transfers both Code 2 and the ‘ ‘ legal services ’ ’ item have sufficient unexpended funds to meet the required payment, and since these are matters of public record it must be held that petitioner’s allegation on information and belief is insufficient to raise an issue requiring trial on this question.
The question for determination is thus narrowed to whether the board of a Union Free School District is limited in the expenditure of funds to the amount shown in a particular line item of the budget adopted by the voters. Petitioner relies upon the absence from the Education Law of any provision authorizing transfer between items and the limitation imposed by section 1718 of that law. The latter section provides: “ 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.” Nothing in the language of the section makes clear whether the words ‘1 the amount appropriated ’ ’ refer to the total appropriation or the line item amount. Clarification is, however, supplied by the Regulations of the Commissioner of Education, approved by the Board of Regents September 18, 1942. Subdivision 2 of section 205 of those regulations (N. Y. Off. Comp, of Codes, Rules & Regulations, vol. 1, p. 722) provides that: “ The board of education of every union free school district shall have power and it shall be its duty: * * * (g) To keep the incurred obligations in each school year within the amounts of the total appropriations voted or authorized for that year for current expenses, debt service and capital outlay.” (Emphasis supplied.) That regulation, adopted pursuant to section 207 of the Education Law, is not inconsistent with section 1718, and has the force and effect of law. From that regulation it follows that
Petitioner argues that an inference must be drawn from section 2022 of the Education Law which permits a majority of voters in certain school districts to require that voting be ‘ ‘ for a specific item separately ’ ’ and to increase or reduce any estimated expenditure except teachers’ salaries and ordinary contingent expenses. That provision was added to the section by chapter 801 of the Laws of 1953, however, long after the adoption of the regulation and formulation of the practical construction referred to. Whether legal services are an ordinary contingent expense on which the voters may not pass, it is not now necessary to decide (see Education Law, § 2024). Whatever the effect of section 2022 may be in a case where the voters have passed upon the specific line item in question, it cannot be considered to have inferentially reversed the regulation and construction where, as in this case, there has been no such vote.
Petitioner relies also upon the Comptroller’s decision of December 27, 1951 (7 Op. St. Comp., 1951, p. 453) holding that section 1721 (now § 1718) prohibited a transfer for the purchase of library books from debt service to capital outlay without a special vote, but that decision is entirely consistent
The board had the power to employ counsel (Matter of Fleischmann v. Graves, 235 N. Y. 84). Its expenditure for that purpose was not limited by any specific action of the voters to the appropriation made by the line item “ legal services,” nor is the payment of an amount in excess of that line-item amount prohibited by statute. Despondent’s fourth defense must, therefore, be sustained and the petition dismissed as insufficient. It thus becomes unnecessary to consider the various pleading questions and the other separate defenses raised by respondent. Settle order on notice.