Appeal of PATRICIA DOW, et al,[i] from action of the Board of Education of the Lake George Central School District and Superintendent Lynne C. Rutnik regarding the abolition of a position.

Decision No. 17,762

(October 7, 2019)

Braymer Law, PLLC, attorneys for petitioners, Claudia K. Braymer, Esq., of counsel[1]

Girvin & Ferlazzo P.C., attorneys for respondent, Kristine A. Lanchantin, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioners appeal two resolutions of the Board of Education of the Lake George Central School District (“respondent” or “board”), as recommended by superintendent Lynne C. Rutnik (collectively “respondents”), to abolish the position of assistant principal at respondent’s Junior-Senior High School and to create an interim position of District Administrator for K-12 Curriculum, Instruction, and Student Support Services.  The appeal must be dismissed.

In light of the disposition of this appeal, a detailed recitation of the factual background giving rise to this appeal is unnecessary.  Briefly, at a board meeting on March 13, 2018, respondent adopted resolutions:  (1) abolishing the position of Assistant Principal at respondent’s Junior-Senior High School; and (2) creating the temporary, interim position of District Administrator for K-12 Curriculum, Instruction, and Student Support Services.

Thereafter, petitioners, residents of respondent’s district, initiated a hybrid proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules and seeking declaratory relief (the “Article 78 proceeding”) against respondents in Supreme Court, Warren County, challenging respondents’ abolition and creation of the position described above (Dow v. Lake George Central School District, Index No. 65408/2018 [Supreme Court, Warren County; Nolan, J.]).  On October 26, 2018, the court dismissed petitioners’ claims on the grounds that the Commissioner of Education has primary jurisdiction over such claims.  This appeal ensued.

Petitioners argue that respondents’ resolutions to eliminate the assistant principal position and create an interim position were arbitrary and capricious because the board did not, among other things:  (1) discuss the resolutions at a public meeting; (2) articulate a rational basis for their decision; (3) collaborate with district professionals; or (4) consider actual curricular needs, adverse consequences or relevant data.  Petitioners also argue that the resolutions were passed in a manner contrary to district values, policy and procedures.  Petitioners seek an order annulling the March 13, 2018 resolutions.

Respondents argue that the appeal must be dismissed, inter alia, as untimely.  Respondents also argue that, to the extent petitioners allege violations of the Open Meetings Law, the Commissioner of Education has no jurisdiction to review such claims.  With respect to the merits, respondents contend that it had a reasonable basis for the March 13, 2018 board resolutions.

First, I must address a procedural matter.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803).  The late submission of a reply may be excused where the petitioner demonstrates that there was good cause for the delay (see 8 NYCRR §276.3[a]; Appeal of Wood and Grosso, 57 Ed Dept Rep, Decision No. 17,358).  Respondents’ answer was served by mail on February 4, 2019.  Therefore, petitioners’ reply was due to be filed by February 18, 2019.  By letter dated March 15, 2019, counsel for petitioners requested permission to submit a late reply because she had recently agreed to represent petitioners.  Counsel for petitioners submitted a letter from petitioners’ former attorney, who indicated that he was no longer able to represent them due to a “conflict” and a personal health condition.  Petitioners’ former counsel did not elaborate as to the nature of the “conflict” necessitating withdrawal; the date when he learned of such conflict or the alleged “condition ... which required treatment with numerous cardiac specialists;” or explain how his health condition prevented him from submitting a timely reply.  Accordingly, I have not considered the reply (see Appeal of Yusupova, 49 Ed Dept Rep 88, Decision No. 15,966).

The appeal must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Petitioners merely assert that they are residents of respondent’s district.  Status as a resident of the district or as a parent of a student does not, in and of itself, confer capacity to seek review of the actions of a board of education with respect to its employees (Appeal of McGraw, 31 Ed Dept Rep 451, Decision No. 12,696; Appeal of Strober, 30 id. 4, Decision No. 12,371).  Accordingly, the appeal must be dismissed because petitioners lack standing.

Additionally, to the extent petitioners assert violations of the Open Meetings Law, Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of McColgan and El-Rez, 48 id. 493, Decision No. 15,928).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

The appeal must also be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Here, petitioners first sought review of respondents’ decision by timely commencing an Article 78 proceeding in Supreme Court, Warren County.  As stated above, by decision and order dated October 26, 2018, the court dismissed the Article 78 proceeding on the grounds that the Commissioner of Education has primary jurisdiction over such claims.  In circumstances similar to those presented here, where a petitioner has first commenced an action in the courts which has been dismissed on some basis not involving the merits, the date of dismissal is generally regarded as the equivalent of the date of the “making of the decision or the performance of the act complained of” in §275.16 of the Commissioner’s regulations.  Previous decisions have allowed an appeal to the Commissioner within 30 days after such dismissal (Appeal of Alexander and Gonzalez, 54 Ed Dept Rep, Decision No. 16,731; Appeal of Ferencik, 49 id. 142, Decision No. 15,981, judgment granted dismissing petition to review, September 15, 2011, Sup.Ct., Albany Co.; Appeal of Devente and Jesenof, 48 id. 150, Decision No. 15,822).  Petitioners’ Article 78 proceeding was dismissed on October 26, 2018, and the decision was served with Notice of Entry on November 16, 2018.  This appeal was not commenced until January 15, 2019, more than two months from the date of the court’s decision (and almost exactly two months from Notice of Entry).  Thus, petitioners’ appeal is untimely.

In the petition, petitioners contend that their “diligent prosecution of the Article 78 proceeding constitutes good cause to excuse the delay ....”  Petitioners further assert that, following dismissal of the Article 78 proceeding, they engaged in an “unsuccessful attempt to resolve some of the issues,” including mediation.  I do not find that this series of events constitutes good cause to justify the late filing of this appeal, particularly where petitioners were represented by counsel during the Article 78 proceeding and in connection with this Education Law §310 appeal (cf. Application to Reopen Appeal of T.S., 58 Ed Dept Rep, Decision No. 17,502).

The appeal must also be dismissed for lack of proper verification.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Section 275.5 of the Commissioner’s regulations requires that the petition be verified by the oath of at least one of the petitioners.  Here, none of the petitioners verified the petition.  Instead, the verification is signed by petitioners’ original counsel.  Petitioners’ counsel is not a petitioner, and therefore, his verification is improper and the appeal must be dismissed (see Appeal of Caldwell and Willis, 58 Ed Dept Rep, Decision No. 17,488; Appeal of Acosta, 54 id., Decision No. 16,782; Appeal of Valdez, 54 id., Decision No. 16,651).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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