* Subsequent History: Matter of Board of Educ. of Garrison Union Free School Dist v Mills; Supreme Court, Albany County; Judgment dismissed petition to review; April 7, 2006. *

Appeal of FATHER CONSTANTINE L. SITARAS and SAINT BASIL ACADEMY from actions of the Board of Education of the Garrison Union Free School District and Stan Freilich, Anthony Haskell, Marilyn Palefsky, Anita Prentice, Frances DiSarro and Rebecca Malone regarding denial of admission.

Decision No. 15,187

(March 11, 2005)

White & Case LLP, attorneys for petitioners, Dana E. Foster and Glenn M. Kurtz, Esqs., of counsel

Donoghue, Thomas, Auslander & Drohan, attorneys for respondents, Daniel Petigrow, Esq., of counsel

MILLS, Commissioner.--Petitioner Sitaras is the Executive Director of Saint Basil Academy (“St. Basil”), which is affiliated with the Greek Orthodox Church and operates a residential facility for children whose parents are unable to care for them.  St. Basil and Sitaras (collectively referred to as "petitioners") challenge, among other things, the alleged failure of the Board of Education of the Garrison Union Free School District (“respondent board” or “board”) and individual board members (collectively referred to as “respondents”), to comply with my April 6, 2004 consolidated decision sustaining, in part, petitioners’ challenge to the board’s determinations that 26 children then residing at St. Basil were not district residents of the Garrison Union Free School District (“Garrison” or “district”).  The appeal must be sustained in part.

The facts underlying petitioners’ previous appeals are set forth in the original decision (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044) and briefly summarized here.  St. Basil is located within Garrison.  Garrison operates a school for grades K-8 and pays tuition to send its residents to high school in neighboring school districts.  Prior to the 2002-2003 school year, St. Basil paid nonresident tuition for the children in its care (“St. Basil children”) to attend school in neighboring districts, primarily the Highland Falls Central School District (“Highland Falls”).

At the beginning of the 2002-2003 school year, petitioners sought to enroll 26 St. Basil children in Garrison’s schools as district residents.  Shortly thereafter, respondent board conducted residency hearings pursuant to §100.2(y) of the Commissioner’s regulations to determine the children’s residency.  In separate decisions, the board found that none were district residents.  Petitioner then commenced three separate appeals challenging the board’s determinations, and in August 2003, I granted interim relief directing the board to admit the children to Garrison’s schools and treat them as district residents pending a determination on the merits.

In a decision dated April 6, 2004, I found, among other things, that although petitioners failed to establish that any of the children were district residents, under Education Law §3202(6) those children with a parent or guardian residing in New York State are entitled to attend Garrison’s schools on a tuition basis at the expense of each child’s school district of residence or responsible social services district.[1]  Consequently, I directed petitioners to provide respondent board, within 30 days of the decision, with any and all information concerning each child’s district of residence or social services district responsible for their maintenance and support, and further ordered that “upon receipt of such information, respondent [board] contact each such school district of residence or local social services district and make arrangements for the payment of tuition and continuing education for the children in question.”  None of the parties sought judicial review of my decision.  Respondent board’s application to reopen the decision was denied on September 1, 2004 (Application to reopen Appeals of Sitaras, et al., 44 Ed Dept Rep ___, Decision No. 15,112).

By letter dated April 16, 2004, petitioners supplied respondent board with residency information, including parent or guardian name, address and corresponding school district, for ten St. Basil children who were presumably New York State residents.  Shortly thereafter, Garrison’s superintendent sent letters and invoices to the respective school districts for eight St. Basil children requesting payment for educational expenses for the 2003-2004 school year.  The superintendent sent another series of letters with invoices in June 2004 to school districts for ten children, again requesting payment for educational expenses for 2003-2004.  Although both series of letters reference my April 6, 2004 decision, none of the letters mention the 2004-2005 school year or request that the districts make tuition arrangements for the children’s future education.

Thereafter, the parties exchanged a series of letters concerning the implementation and interpretation of my decision.  By letter dated June 30, 2004, the superintendent advised petitioners that Garrison intended to hold St. Basil responsible for tuition for the 2003-2004 school year because it had been unable to identify and determine a responsible school district for the ten students.  The superintendent further advised that, pursuant to district policy, Garrison would admit St. Basil children only if St. Basil reimbursed Garrison for “expenses incurred during the 2003-04 school year” and paid all educational expenses for the 2004-2005 school year 15 days before the start of the school year.  By letter dated July 8, 2004, St. Basil’s attorney disputed St. Basil’s liability for tuition for the 2003-2004 school year and requested that Garrison document both its tuition figures and efforts to make tuition arrangements for the St. Basil children for the upcoming school year.

In a response dated July 20, 2004, the board’s attorney advised that it had no obligation to educate St. Basil children unless and until a responsible school district or social services district had been identified and determined.  Further, by letter dated July 28, 2004, respondent board’s attorney provided St. Basil’s attorney with a copy of the board’s “Compliance Policy Education Law 3202(6)” as well as supporting documentation for its 2003-2004 tuition bills and requested that St. Basil provide the names of those children it planned to send to Garrison’s K-8 school for the 2004-2005 school year, as well as certain custody and residency information it needed to comply with my decision.

By letter dated August 5, 2004, St. Basil’s attorney again disputed St. Basil’s liability for tuition for the 2003-2004 school year, accused respondent board of violating my decision by, among other things, conditioning the children’s admission on the payment of tuition for the 2003-2004 school year and by failing to make sufficient effort to arrange for tuition for the 2004-2005 school year.  By letter dated August 18, 2004, St. Basil’s attorney requested that Garrison enroll the St. Basil children in the district’s schools.  This appeal ensued.  Petitioners’ request for interim relief was denied on September 1, 2004 and petitioners’ request for reconsideration was denied on September 10, 2004.

Petitioners contend that respondents violated my April 6, 2004 decision by failing to make tuition arrangements with the appropriate school districts and social services districts and by refusing to admit the children unless St. Basil reimbursed Garrison for their educational expenses from the 2003-2004 school year and paid tuition in advance for the 2004-2005 school year.  Petitioners also complain that Garrison’s tuition bills for the 2003-2004 school year lack detail and are “suspiciously high.”  For relief, petitioners request that I direct respondents to: admit the St. Basil children to Garrison’s schools; arrange and pay for the St. Basil children to attend Highland Falls’ schools; collect tuition for the appropriate responsible school districts and social services districts; and require payment only at the conclusion of the school year.  Petitioners also request that I remove each of the individually named board members for willfully violating my decision.

Respondents contend that St. Basil lacks standing and has failed to join necessary parties.  Respondents further claim that I lack subject matter jurisdiction to compel Garrison to collect tuition from school districts and social services districts for nonresident children or make arrangements for the children to attend Highland Falls, or to compel Garrison to accept payment of tuition only at the conclusion of the school year.  Respondents also allege that Garrison is not obligated to receive any of the St. Basil children because St. Basil has a charter to operate a private boarding school.  Finally, respondents assert that none of the board members have committed any willful violation of the law or disobeyed any decision or order of the Commissioner.

In addition, respondent board seeks permission pursuant to Education Law §3202(6) to deny admission to the St. Basil children on the grounds that it has established valid and sufficient reasons to do so.

In reply, petitioners assert, among other things, that respondents are precluded from challenging my authority to order respondent board to make arrangements for tuition because respondent board did not seek judicial review of my prior decision.

As a threshold matter, I find that petitioners have standing to maintain this appeal.  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 Sweeney, 44 Ed Dept Rep    , Decision No. 15,139; Appeal of Bermudez, 41 id. 355, Decision No. 14,712).  In large measure, petitioners’ claims relate to respondents’ alleged failure to comply with my decision in their earlier appeals.  As parties to those appeals, petitioners clearly have standing to maintain such a challenge.  Further, because Education Law §306 authorizes the removal of a board member for willful failure to obey a decision or order of the Commissioner, I find that petitioners have standing to seek such relief.

I decline, however, to address petitioners’ challenge to Garrison’s tuition bills.  The Commissioner of Education lacks authority to award money damages (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Moore, 41 id. 436, Decision No. 14,738; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613).  Accordingly, in the context of a residency appeal, the Commissioner of Education has declined to award a school district tuition for educating a nonresident student or to order a district to reimburse a petitioner for tuition paid on behalf of a resident student who was entitled to attend district schools (see, Appeal of Baronti, 42 Ed Dept Rep 140, Decision No. 14,802; Appeal of a Student with a Disability, supra; Appeal of Zavesky, 40 id. 517, Decision No. 14,543).  Any dispute regarding petitioners’ liability for tuition should thus be resolved in the New York State Supreme Court or other court of competent jurisdiction.

As discussed more fully below, I also find that Garrison may not require St. Basil to pay the children’s tuition from the 2003-2004 school year as a condition to their admission on a tuition basis for the 2004-2005 school year.

A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of American Quality Beverages, LLC, 43 Ed Dept Rep 402, Decision No. 15,032; Appeal of Lynch, 42 id. 398, Decision No. 14,892; Appeal of Roff, 41 id. 346, Decision No. 14,708).  Respondents claim that those school districts that have been identified and determined to be responsible for tuition are necessary parties to this appeal.  I disagree.  Petitioners essentially challenge respondents’ alleged failure to comply with my order directing respondent board to contact and make arrangements for the payment of tuition with the resident school districts and social services districts identified by petitioners.  I do not find that the rights of any school district would be adversely affected by a determination of the merits of this appeal, and therefore, do not find that petitioners have failed to join any necessary parties.

Before turning to petitioners’ claim that respondents did not comply with my decision, I will briefly address respondents’ claim that I lack subject matter jurisdiction to order respondents to “collect tuition” for the St. Basil children from resident school districts and social services districts.  Although respondents do not explicitly phrase their claim as such, respondents essentially challenge my authority to order the relief granted in Appeals of Sitaras, et al. (supra).  However, the record reflects that respondent board never sought judicial review of that decision and as a result, it is now final and binding on respondent board (see, Bd. of Educ. Oneonta City School Dist. v. Manning, 119 AD2d 971).

I further find this claim without merit.  Pursuant to Education Law §310, I have jurisdiction to examine and decide any petition made in consequence of, among other things, any “official act or decision of any officer, school authorities, or meetings.”  Petitioners’ challenge to respondent board’s residency determinations clearly fall within that scope of authority under Education Law §310. 

Education Law §311 also vests the Commissioner with the authority to “make all orders . . . which may, in his judgment, be proper or necessary to give effect to his decision.”  As I noted in Appeals of Sitaras, et al. (supra), because the parties apparently did not contemplate that the St. Basil children’s educational rights were governed by Education Law §3202(6), it appeared that none of the respective resident school districts or social services districts had been contacted about arranging for the children’s education.  Because the relief ordered was designed to give effect to my finding that the children were entitled to attend Garrison’s schools on a tuition basis, I find it within my authority under Education Law §311.

Based on the record before me, I find that respondent board did not fully comply with that portion of my decision and order that directed respondent board to contact social services districts and school districts identified by petitioners to make tuition arrangements.  Although respondent board billed various school districts for the children’s tuition for the 2003-2004 school year, there is no evidence in the record that respondent board’s administrative staff made diligent efforts to contact such school districts to make tuition arrangements for the children’s education for the 2004-2005 school year.  As noted above, none of the letters accompanying the tuition bills requested that the school districts contact Garrison to make tuition arrangements for the 2004-2005 school year.  Further, although it appears that many of the school districts did not respond to Garrison’s letters, there is no evidence that Garrison’s administration attempted to contact the districts by telephone to pursue the matter further.

Although respondent board’s lack of diligence contributed to the fact that tuition arrangements are not in place, I nevertheless find that respondent board had no obligation to make arrangements with Highland Falls for the education of any St. Basil children because Education Law §3202(6) does not impose an obligation on respondent board to “receive” children unless it is requested to do so on a tuition basis.

While I find that respondent board did not fully comply with my decision, I do not find that petitioners have established any legal basis to remove any individual board members.  The Commissioner of Education has authority to remove a board member or school official when it is proven to the Commissioner’s satisfaction that the board member or school official has engaged in a willful violation or neglect of duty under the Education Law or other law pertaining to the public schools or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Education Law §306; Appeal of Simmons, 43 Ed Dept Rep 7, Decision No. 14,899; Application of Lilker, 40 id. 704, Decision No. 14,588; Appeal of Gaul, et al., 40 id. 105, Decision No. 14,432).  To be considered willful, respondents’ actions must have been intentional and with a wrongful purpose (id.).  In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief and the burden of demonstrating a clear legal right to the relief requested (8 NYCRR §275.10; Application of Lilker, supra; Appeal of Gaul, et al., supra).  There is no evidence on the record that any board members engaged in conduct that could be construed as willful disobedience of my decision.

I agree with petitioners, however, that respondent board’s “Compliance with Education Law 3202(6)” policy contravenes Education Law §3202(6) and my prior decision.   Respondent board’s obligation to admit the St. Basil children on a tuition basis is absolute and unconditional, absent a showing that the board has “valid and sufficient reasons” for refusing to do so.  Accordingly, respondent board may not condition its receipt of the children on St. Basil’s payment of tuition from the prior school year (2003-2004), especially since, as discussed above, there has been no determination that St. Basil is legally responsible for that tuition.

I further find that the board’s policy contravenes Education Law §3202(6) to the extent that it requires payment of tuition-in-full 15 days before the start of the school year. The Commissioner has repeatedly held that tuition payments between school districts for nonresident students are due at the completion of the school year in which they are incurred (Appeal of the Bd. of Educ. of the East Quogue Union Free School Dist., 43 Ed Dept Rep 385, Decision No. 15,026; Appeal of the Bd. of Educ. of the Port Jefferson Union Free School Dist., 26 id. 525, Decision No. 11,841).  In Matter of Appeal from the action of the Bd. of Educ. of Union Free School Dist. No. 1 of the Town of Mentz (34 St. Dept. 237, Decision No. 1072), the Commissioner found that because there was no statutory provision establishing the conditions for tuition collection, respondent could exercise reasonable discretion in fixing the terms of payment.  However, in that appeal, the Commissioner found that it was unreasonable for respondent to require the district of residence to provide tuition-in-full in advance of the school year.

Similarly, although respondent board has the right to require a written, unconditional commitment for the payment of tuition prior to accepting any of the St. Basil children, and to impose other reasonable requirements, I find that respondent board’s requirement of full payment of tuition by a school district of residence in advance of the school year contravenes the statute.  There is no language in Education Law §3202(6) that would authorize Garrison to refuse a request from a school district of residence for instruction on a tuition basis that is received either before or after the start of the school year.  Therefore, I find that it is an abuse of discretion to impose such a requirement.

In addition, respondent board’s application to establish valid and sufficient reasons for denying admission to the St. Basil children must be denied.  Education Law §3202(6) requires the local school district where the institution is located to receive the institution’s children on a tuition basis, unless it can “establish to the satisfaction of the commissioner of education that there are valid and sufficient reasons for refusal to receive such children” (Education Law §3202[6]).

Respondent board’s argument that it will suffer a financial hardship if it is forced to educate the St. Basil children without receiving tuition payments is without merit because it has no obligation to educate those St. Basil children for whom no tuition arrangements are in place.  Accordingly, I find that respondent board has not established any financial hardship.

The fact that Garrison only operates a K-8 school does not relieve respondent board of its obligation to “receive” St. Basil’s high-school-aged children.  Just as respondent board makes arrangements for its resident children to attend high school in neighboring district schools, so too, can respondent board make such arrangements for the St. Basil children.  Moreover, there are important public policy reasons for rejecting the board’s argument.  By requiring the local school district to receive the children cared for in an Education Law §3202(6) institution on a tuition basis, the statute ensures that such children are able to receive a public education while under the institution’s care.  If I were to relieve respondent board of this responsibility, the children would not be guaranteed the opportunity to attend public school at the expense of their respective resident school districts because the statute does not impose an obligation on any other school district to receive such children.

Finally, although I am again ordering respondent board to contact the children’s respective school and social services districts concerning the arrangement of tuition for the current school year, there is nothing that prohibits petitioners from engaging in similar efforts to facilitate such tuition arrangements, and I encourage them to do so.

I have examined the parties’ remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent board’s “Compliance Policy Education Law 3202(6)” is hereby annulled to the extent it is inconsistent with this decision; and

IT IS FURTHER ORDERED that within 30 days of this decision respondent board contact, both in writing and by telephone, each of the school districts and social  services districts identified by petitioners pursuant to my earlier order to make tuition arrangements for the education of the children in question for the current school year; and

IT IS FURTHER ORDERED that respondent board advise petitioners of the results of its efforts on an ongoing basis; and

IT IS FURTHER ORDERED that respondent board immediately receive each of the St. Basil children when tuition arrangements are in place in accordance with this decision.

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