I respectfully dissent in part. In my view, Supreme Court properly agreed with petitioners that Education Law § 2023 (1) requires respondents to fund “ordinary contingent expenses” as part of the contingency budget of the Cato-Meridian Central School District (District), and that the enumerated ordinary contingent expenses include expenses incurred for “interschool athletics, field trips and other extracurricular activities,” as set forth in the statute.
As the majority notes, at various intervals the Legislature defined and then expanded its definition of the “ordinary contingent expenses” to which the statute refers. The majority further notes that, as originally enacted, such expenses included those items that a school district was required to fund by law, and those items that were “authorized by statute ... or were necessary to maintain the educational program, preserve property, or assure the health and safety of the students and staff” (citations omitted). The amendment to section 2023 (1) at issue herein was enacted in 1997, and it specified that “ordinary contingent expenses” include those “incurred for interschool athletics, field trips and other extracurricular activities” (L 1997, ch 436, part A, § 24). At that time, the Legislature also amended the statute by substituting the word “shall” for the word “may” with reference to the adoption of a contingency budget (see id.). Thus, Education Law § 2023 (1) now provides:
“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 *85contingent expenses, including the purchase of library books and other instructional materials associated with a library and expenses incurred for interschool 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 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” (emphasis added).
I agree with petitioners that the 1997 addition of the word “shall” replacing the word “may” effected a major change in the law, requiring the Board of Education of the District to provide, within its discretion, the level of funding for each category of “ordinary contingent expenses” set forth in the statute. I take specific issue with the position of the majority that the word “shall” refers only to the directive that a board of education adopt a contingency budget and levy a tax in the event that voter approval of a budget is not obtained. In my view, the word “shall” applies equally to the inclusion of the enumerated expenses in the contingency budget. I also cannot agree with the statement of the majority that there is a “ ‘may’/‘must’ dichotomy inherent in the word ‘shall’ ” (citations omitted). The word “shall” indicates that an act is mandatory, not permissive. Indeed, in discussing the addition of section 114-a (1) to the Workers’ Compensation Law in 1996, the Court of Appeals noted that the imposition of the penalty referred to therein “is mandatory (‘shall’)” (Matter of Losurdo v Asbestos Free, 1 NY3d 258, 265 [2003]; see also Matter of Pyramid Crossgates Co. v Board of Assessors of Town of Guilderland, 302 AD2d 826, 828 [2003], lv denied 100 NY2d 504 [2003]; Thomas v Alleyne, 302 AD2d 36, 40 [2002]). In my view, the use of the word “shall” in the statute plainly and unambiguously requires the funding of all items of “ordinary contingent expenses” enumerated in the statute that were previously submitted to the voters and rejected. I acknowledge the view of the majority that such a statutory construction appears incongruous in light of the broad discretion historically afforded to a board of education, which is cast with the heavy responsibility of formulating a contingency budget. However, the 1997 amendment of the statute specifically added the word “shall” with linkage to the expanded scope *86of the “ordinary contingent expenses” to be included in a contingency budget.
The majority sets forth the 1992 admonition of then Governor Cuomo that the expansion of the scope of ordinary expenses included in the contingency budget “effectively nullifies the decision of the voters.” His statement buttresses my view that the Legislature was fully aware of the consequences of its actions when it added the disputed items to the enumerated ordinary contingent expenses and substituted the word “shall” for “may.” Thus, in my view, we cannot defer to a historical analysis, and Education Law § 2023 (1) must be read as written. The Legislature, in its wisdom, substituted the word “shall” for “may” for reasons best known to it and in the future may well see fit to redefine ordinary contingent expenses. That, however, is properly the function of the Legislature, and it is not for a court to superimpose a statutory interpretation deemed desirable by the court. I note in addition that, in my view, to the extent that the majority appears to rely on the interpretation of this controversy expressed by the New York State Commissioner of Education (Commissioner), that reliance is misplaced. This matter involves statutory interpretation and pure issues of law and thus is within the province of the courts; it does not involve the “matters of policy” that are within the province of the Commissioner (Matter of Walker v Board of Educ. of Olean City School Dist., 78 AD2d 982, 983 [1980]).
Unlike the majority, I do not find the absence of legislative history relative to the 1997 amendments to be meaningful particularly where, as here, the words adopted and enacted as part of Education Law § 2023 (1) are plain and unambiguous. I thus conclude that, despite the history of affording a board of education broad discretion with respect to school district funding, Education Law § 2023 (1) as amended in 1997 mandates the inclusion of funding of interschool athletics within the budgetary parameters of Education Law § 2023 (3) and (4), as plainly expressed in the statute. I note, however, that my construction of the statute applies only with respect to items included in the budget rejected by the voters. The inclusion of items such as field trips in the contingency budget is not required because, in the Board’s discretion, field trips were not included in the budget rejected by the voters.
I further conclude, however, that the court erred in directing that the disputed items be included in the contingency budget on a “pro rata” basis. Accordingly, in my view, the judgment *87should be modified by directing that respondents include the disputed funds previously deemed to be necessary in the budget rejected by the voters, subject to the limitations imposed by Education Law § 2023 (3) and (4).
I agree with the majority’s conclusions with respect to the remaining issues before us.
Martoche, Smith and Pine, JJ., concur with Kehoe, J.P.; Gorski, J., dissents in part in a separate opinion.
It is hereby ordered that the judgment so appealed from be and the same hereby is modified, on the law, by dismissing the petition in its entirety and as modified, the judgment is affirmed, without costs.