Appeal of HARVEY R. MANES from action of the Board of Education of the Westbury Union Free School District regarding a school district boundary.

Decision No. 15,551

(March 30, 2007)

Jaspan Schlesinger Hoffman, LLP, attorneys for respondents, Lawrence J. Tenenbaum, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Westbury Union Free School District (“respondent”) to consent to alter the boundary between the Westbury Union Free School District and the Jericho Union Free School District.  The appeal must be dismissed.

Petitioner resides in Old Westbury, New York, within the Westbury Union Free School District (“Westbury”).  On May 8, 2006, petitioner and several other residents petitioned respondent to consent to a boundary alteration whereby their properties would be located within the Jericho Union Free School District (“Jericho”).  By letter dated June 23, 2006, the superintendent notified petitioner that on May 17, 2006, respondent denied the request.  The board minutes reflected respondent’s determination that the requested boundary alteration “would not be in the best interests of the District or all of the children involved...”

On or about July 19, 2006, petitioner attempted to appeal respondent’s decision, pursuant to Education Law §310.  By letter dated July 26, 2006, my Office of Counsel returned petitioner’s papers stating that his verified §310 petition did not comply with the Commissioner’s regulations.  On August 3, 2006, petitioner re-served respondent with a corrected §310 petition.

Petitioner asserts, on behalf of himself and certain Old Westbury residents, that it is in the best educational interest of their children to alter the boundary.  He claims that the high school in Jericho is safer and that their children are “economically, physically and socially more closely aligned” with students in Jericho.  Petitioner asserts the present boundary is arbitrary and that the Long Island Expressway (“LIE”) is a natural boundary that could separate the districts.  Petitioner asserts that Jericho’s superintendent has indicated his willingness to accept the students from Old Westbury.

Respondent contends that the petition is not properly verified.  Respondent also maintains the appeal must be dismissed for failure to join the Board of Education of Jericho, the district superintendent of the supervisory district and certain residents of Old Westbury as necessary parties to the appeal.  Respondent contends that petitioner has failed to assert sufficient facts to maintain a class appeal on behalf of other residents of Old Westbury.  Respondent also asserts that petitioner has failed to obtain written consent to the boundary change from the Board of Education of Jericho, as required by Education Law §1507.  Respondent maintains that its refusal to consent to the boundary change was not arbitrary or capricious or an abuse of discretion. 

Initially, I will address respondent’s procedural arguments.  Petitioner attempts to bring this appeal on behalf of residents of Old Westbury.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Hempstead Parents/Community United, 45 Ed Dept Rep 381, Decision No. 15,357; Appeal of Hempstead Parents/Community United, 45 id. 354, Decision No. 15,346; Appeal of Ockimey, 44 id. 169, Decision No. 15,136).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Hempstead Parents/Community United, 45 Ed Dept Rep 381, Decision No. 15,357; Appeal of Hempstead Parents/Community United, 45 id. 354, Decision No. 15,346; Appeal of Garmaeva, 43 id. 253, Decision No. 14,988).  Petitioner’s pleadings are entirely devoid of any allegations addressing those criteria.  Therefore, to the extent petitioner seeks to maintain the appeal on behalf of other residents, class status is denied.

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 Hazeltine, 45 Ed Dept Rep 479, Decision No. 15,387; Appeal of Perez, 42 id. 71, Decision 14,779; Appeal of Nocerino, 40 id. 244, Decision No. 14,472).  Petitioner’s initial appeal papers consisted of a notice, affidavit of verification dated July 18, 2006, and an exhibit.  It set forth no factual or legal allegations regarding respondent’s May 17, 2006 determination.  The corrected petition, served by petitioner on August 3, 2006, sets forth such allegations but contains the same affidavit of verification, dated July 18, 2006, that was submitted with the rejected petition.  The petition before me, therefore, is not properly verified and must be dismissed.

The appeal must also be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Although petitioner contends that the superintendent of Jericho has expressed his willingness to accept the students from Old Westbury, there is no indication that petitioner sought the consent of Jericho’s board of education.  The consent of both districts is required to alter the boundary (see Education Law §1507).  Inasmuch as Jericho would be adversely affected by a decision in favor of petitioner, it is a necessary party to the appeal (Appeal of Jimerson, 39 Ed Dept Rep 558, Decision No. 14,310).  Petitioner’s failure to join the Board of Education of Jericho warrants dismissal of the appeal.

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

THE APPEAL IS DIMISSED.

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