Board of Ed. of Liverpool Central School Dist. v. Ambach

• Decision Date: 16 March 1981
• Parties: The BOARD OF EDUCATION OF the LIVERPOOL CENTRAL SCHOOL DISTRICT, Peter Penizotto, Individually and as President of the Board of Education of the Liverpool Central School District and Dr. Jerome F. Melvin, Individually and as Superintendent of the Liverpool Central School District, Plaintiffs, v. Gordon AMBACH, as the Commissioner of Education of the Education Department of the State of New York, Defendant.
• Court: New York Supreme Court

Page 427

438 N.Y.S.2d 427

108 Misc.2d 632

The BOARD OF EDUCATION OF the LIVERPOOL CENTRAL SCHOOL

DISTRICT, Peter Penizotto, Individually and as President of

the Board of Education of the Liverpool Central School

District and Dr. Jerome F. Melvin, Individually and as Superintendent of the Liverpool Central School District, Plaintiffs, v. Gordon AMBACH, as the Commissioner of Education of the

Education Department of the State of New York, Defendant.

Supreme Court, Albany County,

Special Term.

March 16, 1981.

O'Hara & O'Hara, Liverpool (Dennis G. O'Hara, Liverpool, of counsel), for plaintiffs.

Robert Abrams, Atty. Gen. (James McSparron and David A. Dietrich, Asst. Attys. Gen., of counsel), for defendant.

GEORGE L. COBB, Presiding Judge.

In this declaratory judgment action, plaintiffs move and defendant cross-moves for a summary judgment.

For some years prior to the 1978-79 school year, the State apportioned to local school districts for pupil transportation 90 per cent of "its approved transportation expense for the base year" (see L.1970, ch. 122, § 3) but by section 6 of chapter 71 of the Laws of 1977, two new paragraphs were added to subdivision 7 of section 3602 of the Education Law thereby limiting increases in "gross transportation" expenses and corresponding State apportionments for transportation expenses in each of the school years thereafter to seven per cent of what the district spent in the preceding school year, excluding transportation for handicapped pupils and such other expenditures as might be excluded from such limit pursuant to regulations which were adopted by the Commissioner of Education with the approval of the Director of the Budget (see Budget Report on Bill S. 4887-A, dated April 6, 1977). Thereafter a regulation was duly promulgated which excluded from the "cap" on such spending and on corresponding State apportionments all purchases of buses "other than by notes and bonds" (see 8 NYCRR 175.9, [1]).

The essential thrust of the complaint is the claim that, since the Liverpool Central School District (hereinafter "Liverpool") cannot afford to pay cash for new school buses which it urgently needs, it will be forced to purchase them on credit and that, if it does so, the said "cap" legislation and its implementing regulation will reduce the State's share of the cost of acquiring these buses from 90% to about 4% of the purchase price. On the other hand, it is said that, if Liverpool was one of those districts in the State which has "sufficient cash surpluses to purchase school buses" for cash, Liverpool would receive the full 90% State aid apportionment, which circumstance, the plaintiffs say, denies to them the equal protection of the laws. In the second cause of action, the plaintiffs charge that the said regulation of the commissioner is invalid because the language of the said "cap" legislation "is capable of being reasonably interpreted to mandate" a regulation which excluded all but the interest and financing costs of purchasing school buses on credit from the operation of the said "cap" legislation. Accordingly, plaintiffs seek a judgment which would declare that the said "cap" legislation (Education Law, § 3602, subd. 7, pars. d, e) is unconstitutional and that the said implementing regulation (8 NYCRR 175.9) is invalid.

The action is brought by the Board of Education of Liverpool and by two of its officers in their official capacities and also by said individuals as residents and taxpayers of the district. The defendant says that the said board and its officers lack the requisite standing to maintain this action, and while the plaintiffs concede that this is so insofar as this action challenges the constitutionality of a statute of the State, they maintain that both the board and its officers are entitled to litigate questions concerning statutory interpretation. The court agrees with the plaintiffs (Matter of Jeter v. Ellenville Cent. School Dist., 41 N.Y.2d 283, 287, 392 N.Y.S.2d 403, 360 N.E.2d 1086) and the defendant's said standing argument will be rejected.

The defendant also says that none of the plaintiffs may maintain the action because it was premature when it was commenced. However, since with an exception not here pertinent a citizen-taxpayer action may be maintained pursuant to article 7-A of the State Finance Law when "an officer or employee of the state * * * in the course of his or her duties * * * is about to cause a* * * unconstitutional disbursement of state funds" (State Finance Law, § 123-b, subd. 1), the court believes that this complaint sufficiently charges that the defendant is about to perform acts pursuant to section 3607 of the...