* Subsequent History: Matter of Board of Coop. Educ. Servs. for Second Supervisory Dist. of Erie, Chautauqua & Cattaraugus Counties v University of State Educ. Dept.; Supreme Court, Albany County (Ceresia, Jr., J.); Judgment dismissed petition to review; December 28, 2005; affd 40 AD3d 1349 (3d Dept 2007). *

Appeal of JOSEPH E. SWEENEY from action of the Board of Cooperative Educational Services for the Second Supervisory District of Erie, Chautauqua and Cattaraugus Counties, District Superintendent Richard G. Timbs, and Kelly Services, Inc. regarding a contract for substitute teaching services.

Decision No. 15,139

(November 24, 2004)

James R. Sandner, Esq., attorney for petitioner, Mary Scalise Perillo and James D. Bilik, Esqs., of counsel

Hodgson Russ LLP, attorneys for respondents, David A. Farmelo, Esq., of counsel

MILLS, Commissioner.--Petitioner, a resident taxpayer of the Fredonia Central School District, a component district of the Board of Cooperative Educational Services for the Second Supervisory District of Erie, Chautauqua and Cattaraugus Counties (“BOCES”), brings this appeal against BOCES, its District Superintendent Richard G. Timbs and Kelly Services, Inc. (“Kelly”), collectively “respondents,” to annul a contract between BOCES and Kelly, and to annul the alleged delegation of substitute teaching instruction to Kelly.  The appeal must be sustained.

On August 25, 2003, BOCES and Kelly entered into a contract for “per diem” substitute teaching services. The contract provides that Kelly will recruit, interview, select, hire and assign employees to render per diem substitute teaching services for BOCES. It further provides that Kelly will ensure that each per diem substitute meets any applicable teacher certification and criminal background check requirements, pay the per diem substitutes’ wages and benefits, and maintain their personnel and pay records. The contract further provides that the substitute teachers shall remain Kelly’s employees and shall not be employees of the BOCES.

In accordance with the terms of the contract, Kelly began providing per diem substitutes to BOCES at the beginning of the 2003-2004 school year. This appeal ensued.  Petitioner’s request for interim relief was denied on December 19, 2003.

Petitioner asserts that BOCES has no legal authority to contract with Kelly for the services of per diem substitutes.  He also asserts that the contract is a violation of the respondent superintendent’s obligation under §80-5.4 of the Commissioner’s regulations to employ appropriately qualified substitute teachers.

Respondents contend that petitioner does not have standing to bring this appeal.  Respondents further assert that BOCES does have authority to contract for the services of the per diem substitutes.

I decline to dismiss the appeal 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 her or his civil, personal or property rights (Appeal of Giardina and Carbone, 43 Ed Dept Rep __, Decision No. 15,030; Appeal of Allard, 43 Ed Dept Rep __, Decision No. 14,957).  Petitioner is a resident of a component district of BOCES.  District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeals of Giardina and Carbone, supra; Appeal of Allard, supra).   Petitioner makes such a challenge in that he alleges that the BOCES has expended funds on the contract with Kelly without statutory authority and in violation of the Commissioner’s regulations.  Respondents argue that district residents should not have standing based on an alleged illegal expenditure of funds by a BOCES because district residents do not vote on the members of the BOCES board or the approval of a BOCES budget.  However, the budgets of a BOCES are charged against the component districts (Education Law § 1951(1)).  Thus, an unlawful expenditure of funds by a BOCES is, in effect, an unlawful expenditure of the funds of each component district.  Accordingly, I find that petitioner does have standing to maintain this appeal.

I find that BOCES does not have the authority to contract with Kelly for instructional services. I have repeatedly held that a board of education lacks authority to provide instructional services through an independent contractor (Appeal of McKenna, 42 Ed Dept Rep 54, Decision No. 14,774; Matter of Friedman, 19 Ed Dept Rep 522, Decision No. 10,236).

Respondent argues that Matter of Friedman, supra, and Appeal of McKenna, supra, are factually distinguishable from the present case. In Friedman, I determined that the respondent board of education did not have authority to retain an independent contractor for psychological services as an alternative to the appointment of a school psychologist pursuant to Education Law § 3012(1). In McKenna, I determined that the respondent board of education did not have authority to enter into a contract with a private entity to provide alternative instruction to suspended students and dropouts.

Respondents observe that in Friedman the contracting of the services at issue allowed the board of education to avoid the requirement of Education Law § 2510(1) that when a board of education abolishes a position and creates a position with similar duties the person holding the abolished position must be appointed to the new position. Similarly, in McKenna the contracting of the services at issue allowed the board of education to avoid the requirement of Education Law § 3012(1)(a) that when a new instructional position is created it must be filled by making a probationary appointment.  Thus, in both cases, respondents attempted to avoid their obligation to fill positions in accordance with the requirements of the Education Law. I agree that there are factual differences between these cases and the present case and that there is no evidence that the contracting arrangement in the present case is an attempt to avoid specific requirements of the Education Law related to teacher tenure. 

Nevertheless, a BOCES is a creature of statute and has no inherent powers and possesses only those powers expressly delegated by statute.  Education Law §1950(4) enumerates the powers and duties of a BOCES. Specifically, paragraph h provides the entities with which a BOCES may contract and the limited purposes of such contracts.  The contract at issue here is not authorized by this statute. Therefore, I conclude that BOCES acted without legal  authority when it contracted for substitute teaching services.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the contract between the Board of Cooperative Educational Services for the Second Supervisory District of Erie, Chautauqua and Cattaraugus Counties and Kelly Services, Inc. is hereby annulled.

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