Decision No. 14,285

(December 23, 1999)

MILLS, Commissioner.--Petitioner, a resident of the Greece Central School District, challenges certain actions taken by respondent with respect to its physical education and early retirement incentive programs. The appeal must be dismissed.

Petitioner commenced this appeal by service of a copy of his petition on respondent's clerk on June 9, 1999. Petitioner contends that respondent's conduct of its physical education program is in violation of State law. Petitioner alleges that elementary students in grades K–3 are not participating in physical education on a daily basis and for at least 120 minutes in each calendar week; that students in grades 4 and 5 are not participating in physical education at least 3 times per week and for at least 120 minutes per calendar week; and that the district does not have a current, approved plan for physical education instruction. Petitioner further alleges that the amount of the salaries respondent allocated to new teachers hired for the 1998-99 school year to replace teachers retiring under the State early retirement incentive program (Chapter 41 of the Laws of 1997, as amended by Chapter 47 of the Laws of 1998) violates "9(a) of Chapter 41. Petitioner also complains about respondent's lack of responsiveness in addressing his request for data and information respecting the teacher salaries.

Petitioner requests that I direct respondent to comply with State law concerning replacement teacher salaries; that I direct respondent to respond to requests for data and information in a timely manner pursuant to State law; and that I order respondent to develop a physical education plan and conduct its physical education program in compliance with State law.

Respondent denies petitioner's allegations and raises several affirmative defenses. Respondent contends that petitioner lacks standing to maintain his appeal with respect to the physical education program; that the appeal is untimely with respect to the teacher salaries issue; and that an appeal to the Commissioner is an inappropriate forum to raise issues with respect to respondent's compliance with the Freedom of Information Law.

Petitioner contends that I should not consider respondent's affirmative defense of lack of standing because this defense was first raised in respondent's memorandum of law. A memorandum of law may not be used to belatedly add new "assertions" which are not part of the pleadings (Appeal of Linville, et al., 38 Ed Dept Rep 464, Decision No. 14,073; Appeal of Coombs, 34 id. 253, Decision No. 13,301). The rationale for this procedural rule is that it is necessary to ensure an orderly framing of the issues (Matter of a Handicapped Child, 24 Ed Dept Rep 41, Decision No. 11,308).

However, standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law "310. 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 or property rights (Appeal of Woodward, 36 Ed Dept Rep 445, Decision No. 13,773; Appeal of Craft and Dworkin, 36 id. 314, Decision No. 13,734). As a jurisdictional prerequisite to an appeal, a petitioner's standing must be established in the record for the Commissioner to have authority to determine the appeal, regardless of whether lack of standing is raised as an affirmative defense. Education Law "311(3) specifically provides that the Commissioner shall have the power to dismiss an appeal when it appears that the petitioner has no interest in the matter appealed. Accordingly, I am not precluded from determining petitioner's standing.

Petitioner is a taxpayer and resident of the district. However, there is no claim in the petition that petitioner has been individually affected by respondent's conduct of its physical education program. There is nothing in the record to indicate that petitioner is a parent or guardian of a grade K-5 student participating in respondent's physical education program. Petitioner's status as a resident and taxpayer of the district is not sufficient to confer standing to seek my review pursuant to Education Law "310 of the actions of the board of education with respect to its physical education program (Appeal of Ehnot, 37 Ed Dept Rep 648, Decision No. 13,948; Appeal of Larry B., 37 id. 632, Decision No. 13,944; Appeal of Woodward, supra). Accordingly, petitioner's appeal with respect to respondent's physical education program must be dismissed for lack of standing.

The allegations in the petition relating to the payment of teachers' salaries must be dismissed as untimely. Petitioner contends that the appeal is timely because it was filed within the fiscal year in which the retirement program was enacted. However, an appeal to the Commissioner pursuant to Education Law "310 must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR "275.16).

The record indicates that respondent adopted the optional State retirement incentive plan by resolution on June 30, 1998; that the period within which eligible teachers had to accept the retirement incentive was from July 1, 1998 through August 21, 1998; that 61 eligible teachers elected to take the retirement incentive; and that the new teachers for the 1998-1999 school year were appointed by October 1998 at the latest. Therefore, petitioner should have commenced his appeal, at the latest, within 30 days of October 31, 1998. However, petitioner did not commence his appeal until June 9, 1999, which is well beyond the 30 day time period prescribed in the regulation.

As an explanation for his delay in bringing the appeal, petitioner contends that respondent was dilatory in providing him with information and failed to provide specific data on replacement teacher salaries. However, petitioner's assertion is, in essence, a claim under the Freedom of Information Law ("FOIL") (Public Officers Law "87, etseq.). Although the record indicates that petitioner filed a formal request pursuant to FOIL for information relating to respondent's physical education program, there is no indication in the record that petitioner filed a formal FOIL request with respect to his request for information concerning teacher salaries or took action pursuant to FOIL to obtain such information in a proceeding in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules (see Public Officers Law "89[4][b]). Furthermore, while petitioner contends that he needed additional time to obtain information, the record indicates that petitioner wrote a letter to the State Comptroller, dated November 18, 1998, which included essentially the same information he now presents in this appeal, relating to the salaries of the retiring teachers and the salaries of the replacement teachers. Therefore, I find that petitioner has failed to establish good cause pursuant to 8 NYCRR "275.16 for me to excuse his delay in filing the appeal.

Even if I were to excuse petitioner's delay, his allegations that respondent violated "9(a) of Chapter 41 of the Laws of 1997, as amended, must be dismissed for petitioner's failure to sustain his burden of proof. In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Robert D. and Barbara D., 38 Ed Dept Rep 18, Decision No. 13,975). Furthermore, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Van Zile and Crowell, 37 Ed Dept Rep 213, Decision No.13,846).

The statute, in essence, requires that respondent's retirement incentive program achieve a compensation savings such that the total amount of the base salary paid to the 'replacement' teachers (i.e. "those new hires, if any, who otherwise would not have been hired . . . but for the retirement incentive") for the two-year period subsequent to the effective date of retirement of the retiring teachers shall not exceed one-half of the total amount of the base salary that would have been paid to the retiring teachers (had they not retired) from the date of their retirement for such two-year period. As petitioner concedes in his reply, there is no data in the record before me as to which teachers were hired to specifically fill the positions being vacated by the retiring teachers, and petitioner therefore makes "a reasonable assumption" regarding such salaries. However, as petitioner also concedes, data with respect to the replacement teacher salaries is crucial to resolution of petitioner's allegations, and I am unable to determine on the record before me whether respondent's early retirement incentive program violates "9(a) of Chapter 41, as amended. While I acknowledge petitioner's contention that he was unable to obtain the necessary information from respondent, as noted above the record fails to indicate that petitioner sought to obtain such information under FOIL.

Although petitioner acknowledges that enforcement of FOIL is not within the specific jurisdiction of the Commissioner of Education, petitioner contends that I may address his claims concerning access to respondent's records pursuant to my general authority to oversee school board operations. While prior to FOIL an appeal to the Commissioner pursuant to Education Law "310 was an appropriate means for such review in view of the Commissioner's general supervisory responsibility for school districts, since the enactment of FOIL and its attendant enforcement and monitoring provisions the Commissioner of Education has consistently declined to exercise jurisdiction over appeals relating to access to school district records (Appeal of Martinez, 37 Ed Dept Rep 435, Decision No. 13,898; Appeal of Greening, 36 id. 394, Decision No. 13,759; Appeal of Goldman, 35 id. 126, Decision No. 13,487).

THE APPEAL IS DISMISSED.

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