Appeal of THE SEA CLIFF – NORTH SHORE PROPERTY OWNERS COMMITTEE from action of Dr. Edward Melnick, Superintendent of the North Shore Central School District, regarding a bond referendum.

Decision No. 16,730

(April 1, 2015)

Law Offices of Charles J. Casolaro, attorneys for petitioner, Charles J. Casolaro, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Neil M. Block, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner challenges the actions of Dr. Edward Melnick, Superintendent of the North Shore Central School District (“respondent”), in responding to a request that flyers relating to a bond referendum scheduled for December 3, 2013 be removed from circulation.  The appeal must be dismissed.

The record indicates that in or about September 2013, the North Shore Central School District (“district”) distributed flyers relating to a proposed $19.6 million bond referendum for district-wide infrastructure repairs.

On October 4, 2013, Anthony Losquadro, Director of the Sea Cliff - North Shore Property Owners Committee, purporting to act on behalf of petitioner, sent a letter via email to respondent regarding petitioner’s objection to the content of the flyers (“October 4 letter”).  The October 4 letter explained petitioner’s view that the language included in the flyers advocated a partisan position and amounted to an improper use of district resources and that the district used the flyers to sway voter opinion by making unsubstantiated claims about the impact the bond would have on the tax levy, the education of students, and the community at large.  In the October 4 letter, petitioner requested that respondent remove the flyers from circulation and amend their content to be limited to the nature of the work proposed and the date of the election.

By email dated October 4, 2013, respondent replied to petitioner’s request stating that, in the opinion of the district’s counsel, the flyers were not improper or in violation of law or regulation.  Thereafter, respondent removed the flyers from circulation and amended the flyers to include a detailed list of projects to be completed and the process by which they were chosen.  Respondent asserts that, although the district denies that the flyers were improper, such changes were made to avoid the threat of litigation suggested by petitioner in the October 4 letter.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 14, 2013.  The bond referendum was approved by the district’s voters on December 3, 2013.

Petitioner asserts, inter alia, that the flyers published by the district appealed to the emotion of the voters and were “fraught with hyperbolic statements” written to “evoke certain empathy for the [s]chool [d]istrict’s plight” and therefore amounted to an improper use of district resources by advocating a partisan position in support of the bond referendum.  As relief, petitioner seeks a permanent injunction prohibiting respondent from printing and distributing “flyers and other materials used to promote a YES vote on the Bond Referendum” (emphasis in original) and the “cancellation” of the December 3, 2013 bond referendum.

Respondent asserts that the appeal must be dismissed as moot.  Respondent also argues that the October 4 response was not an “official act or decision” and that petitioner is not aggrieved and lacks standing to maintain this appeal pursuant to Education Law §310.  Respondent further maintains that the flyers were in all respects proper because they were primarily factual and did not advocate a partisan position.

Initially, I must address several procedural matters.  Respondent requested permission to submit a late answer pursuant to §275.13 of the Commissioner’s regulations.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813).  In this case, respondent served the answer on November 22, 2013, two days after the 20 day timeframe required by the regulation.

In addition, by letter dated January 23, 2014, petitioner requested permission to submit a late memorandum of law pursuant to §276.4 of the Commissioner’s regulations.  In accordance with §276.4 of the Commissioner’s regulations, petitioner’s memorandum of law must be served within 20 days of service of the answer or 10 days after service of the reply, whichever is later.  Petitioner’s memorandum of law was served by mail on January 23, 2014.

Neither party objected to either late filing.  Indeed, petitioner’s attorney states in his January 23, 2014 request that “there is no prejudice to either party associated with the acceptance of these late filings.”  Under these circumstances, and in the absence of any prejudice, I have considered both respondent’s answer and petitioner’s memorandum of law (see e.g., Appeal of Guevara, 54 Ed Dept Rep, Decision No. 16,634; Appeal of Vangilder, 49 id. 6, Decision No. 15,943).

Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]).  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 Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).

The caption of the petition names the Sea Cliff - North Shore Property Owners Committee as the petitioner in this matter.  The record contains no evidence that the association is incorporated.  Accordingly, to the extent petitioner intends to bring this appeal as an unincorporated association, it lacks standing to do so (Appeal of LaGrange et al., 51 Ed Dept Rep, Decision No. 16,315, Appeal of Torres, 46 id. 301, Decision No. 15,515; Appeal of Russo, 46 id. 266, Decision No. 15,504).

 I note that petitioner asserts in the petition that Anthony Losquadro serves as its director and is also a “citizen tax payer and a resident of Sea Cliff.”  However, as noted above, Mr. Losquadro, who verified the appeal as petitioner’s director, was not named as a petitioner in this matter in either his official capacity as petitioner’s director or his individual capacity as a district resident and taxpayer.  In any case, while district residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Strade, et al., 48 Ed Dept Rep 73, Decision No. 15,797; Appeal of Russo, 47 id. 429, Decision No. 15,744; Appeal of Houdek, 47 id. 415, Decision No. 15,740), I need not address the question of whether, based on petitioner’s pleadings, Mr. Losquardo has standing to maintain this appeal as an individual district resident because the appeal must be dismissed as moot.

Petitioner brings this appeal based on allegations that the district’s distribution of flyers relating to the December 3 bond referendum advocated a partisan position in violation of Phillips v. Maurer, et al. (67 NY2d 672 [1986]). Specifically, petitioner challenges the superintendent’s refusal to rescind flyers relating to the bond referendum which were distributed prior to this appeal.  However, subsequent to petitioner’s letter, respondent did in fact cease printing the flyers at issue.  Respondent also revised the flyers relating to the December 3 bond referendum, the content of which the petitioner did not appeal.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Therefore, petitioner’s challenge to respondent’s October 4 email is moot and must be dismissed.  Additionally, the bond referendum was held on December 3, 2013 and petitioner does not seek to overturn the results thereof.  Accordingly, no meaningful relief can be granted with respect to this claim, which must be dismissed as moot (see Appeal of Weiss, 39 Ed Dept Rep 69, Decision No. 14,176).

Finally, I note that it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  As described above, the flyers to which petitioner objects were removed from circulation and petitioner does not challenge the new flyers, the bond referendum was approved by district voters and that vote has not been challenged, and the petition does not allege that any irregularities occurred that impacted the outcome of the vote.  Therefore, any request by petitioner for a determination regarding the content and alleged impact of the flyers is deemed a request for an advisory opinion and must be denied (see Application of Wallace, 52 Ed Dept Rep, Decision No. 16,479; Appeal of Weiss, 39 id. 69, Decision No. 14,176).

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

THE APPEAL IS DISMISSED.

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