Appeals of JAMES GRIFFIN from action of the Board of Education of the Cold Spring Harbor Central School District regarding the construction of an athletic field.

Frazer & Feldman, LLP, attorneys for respondent, James H. Pyun, Esq., of counsel

In two separate appeals, on behalf of himself and a class of district residents, petitioner challenges the actions of the Board of Education of the Cold Spring Harbor Central School District (“respondent”) regarding the construction of an athletic field.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

By public resolution adopted on December 11, 2007, respondent accepted the donation from a charitable foundation (“donor”) of a two million dollar construction project on respondent’s property consisting of a synthetic turf athletic field, access and parking improvements and associated appurtenances (“project” or “gift”).  The project is located adjacent to petitioner’s property.

A public board meeting was held on September 23, 2008 to discuss the finalization of the project, and respondent and the donor entered into a written agreement setting forth the terms and conditions of the project.  By letter dated October 14, 2008, petitioner was notified of the construction work on the project, and construction commenced on that date. 

Following commencement of the project, petitioner received information from a media report that the donor might be in financial difficulty.  By letter dated November 10, 2008, petitioner requested, among other things, information on the donor’s financial assets and ability to complete the project.  At a public meeting held on November 18, 2008, respondent indicated that the donor had sufficient assets to complete the project.

These appeals ensued. Petitioner’s requests for interim relief were denied on December 19, 2008.

Griffin I

In the first appeal, petitioner contends that respondent violated Education Law §§1709(11), 2021(7), 2022 and 2512(1) by not obtaining voter approval for the project, since it imposes potential costs on resident taxpayers.  Petitioner requests that all funds committed by the donor be held in a special fund to restore the property if the project is rejected by the voters.  Respondent argues that petitioner has failed to establish that he is entitled to the relief requested and contends that the petition should be dismissed as untimely, for lack of standing and for failure to join necessary parties.

These claims are 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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594). Respondent argues that the action from which petitioner is appealing is respondent’s acceptance of the gift on December 11, 2007.  The petition was served on November 24, 2008, nearly a year later.  Petitioner argues that he was not notified of the project until October 14, 2008 and that his untimeliness should be excused.  However, it appears from the record that respondent discussed the project in five public board meetings from March 2006 through September 23, 2008.  Moreover, petitioner did not commence the appeal until November 24, 2008, which is not within 30 days of either respondent’s resolution or letter to petitioner notifying him of the project, and petitioner has not shown any good cause for the delay.  Therefore, I find that the first appeal must be dismissed as untimely.

The first appeal must also be dismissed for failure to join a necessary party.  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  The September 23, 2008 agreement provides for the donor to make payments to contractors as application is made for payment.  A determination granting petitioner the relief he requests – that all funds be held in a special fund and possibly be used to restore the property to its original condition – would adversely affect the donor and therefore the donor is a necessary party to the appeal.  Since the donor has not been joined as party, the appeal must be dismissed.

Griffin II

In his second appeal, petitioner contends that respondent has failed to meet its duty of care to taxpayers and voters.   Specifically, he cites a document of the Regents of the University of the State of New York entitled “Statement on the Governance Role of a Trustee or Board Member” which states that a board member should “[h]ave a fiduciary responsibility for the assets, finances, and investments of the institution and exercise due diligence, care and caution as if handling ones own finances . . . .”  Petitioner contends that respondent has only given verbal assurances that the donor is financially secure and that the assurances have not been supported by facts or experts.  Petitioner requests that respondent be ordered to disclose publicly how it has met its duty of care to district taxpayers and voters.  Respondent contends that petitioner has failed to establish that he is entitled to the relief requested and that the appeal should be dismissed as untimely, for lack of standing, and for failure to join necessary parties. 

Initially, I must address petitioner’s attempt to represent a class of district residents.  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 Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Appeal of Manes, 46 id. 419, Decision No. 15,551; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  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 Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Appeal of Manes, 46 id. 419, Decision No. 15,551; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  Petitioner purports to bring this appeal on behalf of the approximately 8,000 district residents and states that “[a]ll questions of fact and law are common to all members of the class because the issue . . . relates to the requirement of a vote prior to any action by the Respondent.”  Despite this conclusory assertion, petitioner has failed to demonstrate how all questions of fact and law regarding respondent’s duty of care are common to all members of the class.  Therefore, class status is denied.

Respondent also contends that the appeal is untimely.  Petitioner is challenging respondent’s alleged failure, at its November 18, 2008 meeting, to demonstrate that it exercised its duty of care in continuing with the project.  The appeal was commenced on December 9, 2008, within 30 days thereafter.  Therefore, the appeal is timely (see 8 NYCRR §275.16).

Respondent contends that petitioner lacks 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 Jefferson, 46 Ed Dept Rep 487, Decision No. 15,572; Appeal of Himmelberg and Little, 46 id. 228, Decision No. 15,490; Appeal of Riccinto, 46 id. 39, Decision No. 15,435).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Jefferson, 46 Ed Dept Rep 487, Decision No. 15,572; Appeal of L.A., et al., 46 id. 450, Decision No. 15,561).  Petitioner contends that respondent failed to meet its duty of care to district residents.  If true, petitioner as a district resident would be an aggrieved party and has standing to bring this appeal.

Petitioner also claims that this appeal must be dismissed for failure to join the donor as a necessary party.  In this appeal, petitioner requests that respondent be ordered to disclose publicly how it has met its duty of care to district taxpayers and voters.  A determination in favor of petitioner would not affect the donor, and therefore, the donor is not a necessary party to this appeal (seeAppeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598).

This appeal, however, must be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Petitioner has not established any legal right to an order requiring respondent to make a public disclosure explaining how it has met its duty of care to district taxpayers and voters with respect to this project.

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

THE APPEALS ARE DISMISSED.

IN WITNESS WHEREOF, I, David M. Steiner, Commissioner of Education of the State of New York for and on behalf of the State Education Department, do hereunto set my hand and affix the seal of the State Education Department, at the City of Albany, this       day of May 2010.

Commissioner of Education