Appeal of ANNMARIE SABARESE from action of the Board of Education of the Greenwood Lake Union Free School District regarding nonresident tuition contracts.

Decision No. 16,820

(August 31, 2015)

Lamb & Barnosky, LLP, attorneys for respondent, Lauren Schnitzer, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from action of the Board of Education of the Greenwood Lake Union Free School District (“respondent” or “Greenwood Lake”) regarding nonresident tuition contracts.  The appeal must be dismissed.

Petitioner is a resident of respondent’s district, which is a kindergarten through eighth grade school district that contracts with neighboring school districts on a tuition basis for the education of its high school students.  Greenwood Lake had entered into separate nonresident tuition contracts with Tuxedo Union Free School District (“Tuxedo”), Warwick Union Free School District (“Warwick”), and Chester Union Free School District (“Chester”), each for the term of September 1, 2013 through June 30, 2015.  As such, for the 2014-2015 school year, Greenwood Lake students had the option of attending high school in Tuxedo, Chester, or Warwick at Greenwood Lake’s expense, pursuant to the terms of the agreements with those districts. 

For the 2015-2016 school year, Greenwood Lake has entered into 22-month “successor agreements” with Chester and Warwick, which were approved by respondent in September 2014.  However, according to the record, Greenwood Lake was unable to reach a successor agreement with Tuxedo.  By letter dated April 1, 2015, Greenwood Lake’s superintendent notified petitioner and other parents whose students attended Tuxedo’s high school that, for the 2015-2016 school year, Greenwood Lake resident students would not have the option of attending Tuxedo at Greenwood Lake’s expense, and that they would have to transfer either to Chester or Warwick’s high schools.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 11, 2015.

Petitioner asserts that despite the fact that “a petition with 400 signatures was presented to the board stating that the residents wanted another contract with Tuxedo,” respondent “negotiated a 22 month contract with just Warwick and Chester.”  As a result, respondent “den[ied] the residents and taxpayers of the school district their constitutional right to a free and fair election....”  Petitioner requests that I “force Greenwood Lake to hold an election with the three districts of Chester, Warwick, and Tuxedo on the ballot and let the public make the decision on to whom we should contract and tuition our students....”

Respondent asserts that the appeal must be dismissed as untimely and for failure to join necessary parties.  It further asserts that the appeal must be dismissed because it is not ripe for review and/or seeks an advisory opinion.  Finally, respondent contends that petitioner has failed to satisfy her burden of establishing the facts upon which she seeks relief and because she has not demonstrated a clear legal right to the relief requested. 

I must first address the procedural issues.  Although not raised by respondent, I note that 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).  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).  However, status as a resident taxpayer of a school district does not, in and of itself, confer standing to challenge a board of education’s actions concerning its students (see e.g. Appeal of Williams, et al., 53 Ed Dept Rep, Decision No. 16,548; Appeal of Hertel, 49 id. 267, Decision No. 16,021; Appeal of Schiavi, 40 id. 615, Decision No. 14,569; Appeal of Chapman, et al., 40 id. 558, Decision No. 14,556).  Petitioner brings this appeal as a resident taxpayer of the district.  She does not assert that she is the parent of a Greenwood Lake student attending Tuxedo’s high school.  However, while she does not appear to allege an illegal expenditure of district funds, petitioner does assert that respondent’s actions have impacted her right as a taxpayer to vote (cf. Appeal of Williams, et al., 53 Ed Dept Rep, Decision No. 16,548).   Accordingly, to the extent petitioner asserts claims on behalf of Greenwood Lake students, the appeal is dismissed for lack of standing.  To the extent petitioner asserts claims regarding her right to vote as a resident and taxpayer, I decline to dismiss those claims for lack of standing.  

The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  Respondent contends that “Greenwood Lake students are free to continue to attend Tuxedo’s high school through June 30, 2015, when the Tuxedo MOA expires, and are thereafter free to continue to attend Tuxedo’s high school at their own expense.”  As such, according to Greenwood Lake, petitioner’s claims are premature because the requested relief is based “on the assumption that Greenwood Lake students will not, at some point in the future, be entitled to attend the Tuxedo high school.”  However, the crux of petitioner’s claims is that respondent failed to hold a public vote at which residents could vote on which nonresident tuition contracts they wished to authorize.  According to the record, Greenwood Lake already entered into successor agreements with Warwick and Chester. Therefore, I decline to dismiss petitioner’s claims as premature. 

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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  Petitioner asserts that despite receiving a petition with 400 signatures stating that residents wanted another contract with Tuxedo, respondent “den[ied] the residents and taxpayers of the school district their constitutional right to a free and fair election.”  Respondent contends that petitioner has not shown that any of the alleged actions occurred within 30 days of the commencement of this appeal.  Petitioner does not make any assertions as to when any of the alleged acts or omissions occurred.  According to the record, by letters dated April 1 and 10, 2015, Greenwood Lake’s superintendent notified the parents of Greenwood Lake students attending Tuxedo’s high school and the community, respectively, that Tuxedo had rejected Greenwood Lake’s proposed contract on March 31, 2015, and that, for the 2015-2016 school year, Greenwood Lake resident students would not have the option of attending Tuxedo at Greenwood Lake’s expense and would have to transfer either to Chester or Warwick’s high schools.  According to petitioner’s affidavit of service, the petition was served on April 23, 2015.  Therefore, I decline to dismiss the appeal as untimely.

Nevertheless, the appeal must be dismissed for failure to join Tuxedo, Warwick, and Chester as 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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Here, petitioner requests that I direct respondent to negotiate a 22-month contract with Tuxedo and hold an election to determine whether to contract with Chester, Warwick, and/or Tuxedo.  Moreover, the record indicates that respondent has already entered into successor agreements with both Warwick and Chester.  Tuxedo, Warwick, and Chester would be directly affected by a determination in petitioner’s favor (see Appeal of Nowak, 52 Ed Dept Rep, Decision No. 16,462).  Therefore, Tuxedo, Warwick, and Chester are necessary parties to the appeal and petitioner’s failure to join them as respondents warrants dismissal.

Even if the appeal were not dismissed on procedural grounds, it would nonetheless be dismissed on the merits.  Education Law §§2040 and 2045 and 8 NYCRR §174.4 authorize a board of education to designate one or more school districts for the purpose of contracting for the education of some or all of its resident pupils.  Education Law §2040 provides as follows:

1. Any school district may decide by a majority vote of the qualified voters present and voting at a district meeting:

* * *

c. To contract for a period of not less than two and not more than five years for the education of all the high school pupils of grades seven to twelve, inclusive, of such district in another school district in this state or in an adjoining state, instead of maintaining a home high school for such grades.

d. To contract for a period of not less than two and not more than five years for the education of some of the pupils of grades seven to twelve, inclusive, of such district in another school district in this state or in an adjoining state provided that such district maintains a home high school for such grades. Nothing herein shall require a district to enter into a written contract for the education of its high school pupils where the term is for a period of less than two years.

2. Such contract may be made with one or more school districts. The designation of the school districts with which such contracts may be made shall be made pursuant to the commissioner's regulations (emphasis supplied).

Section 174.4(b) of the Commissioner’s regulations provides as follows:

The board of education of the sending school district shall designate by resolution a receiving school district(s) for the purpose of contracting for the education of pupils residing in the sending school district. Such resolution shall be adopted no later than the first day of April preceding the school year in which pupils of the sending school district will be educated by the receiving school district (8 NYCRR §174.4[b]).

Subdivision 1 of §2040 unambiguously requires voter approval before a sending district, such as Greenwood Lake, may contract for the education of some or all of its pupils.  However, with respect to contracting for the education of all or some of a district’s high school pupils of grades seven to twelve, the statutory language in §2040(1)(c) and (d) specifically requires the district to obtain voter approval only when seeking “to contract for a period of not less than two and not more than five years (emphasis supplied).”  In other words, the authority to enter into a contract for the education of high school pupils for the duration of two to five years under §2040(1)(c) and (d) requires prior voter approval (see Appeal of the Bd. of Educ. of the Greenport Union Free School Dist., et al., 50 Ed Dept Rep, Decision No. 16,251; Appeal of the Bd. of Educ. of East Quogue Union Free School Dist., 43 id. 385, Decision No. 15,026).  Furthermore, §2040(1)(d) provides that “[n]othing herein shall require a district to enter into a written contract for the education of its high school pupils where the term is for a period of less than two years.”

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner requests that I “compel Greenwood Lake to negotiate a 22 month contract with Tuxedo at the end of which all three district [sic] will be placed on the ballot for public vote.”  However, petitioner does not articulate any statutory or legal basis for the relief requested, since the contract she seeks to compel is for a duration of less than two years (see Education Law §2040[1][d]).  Moreover, even where a district vote is required to approve a nonresident tuition contract, §174.4 of the Commissioner’s regulations authorizes only the board of education to designate, by resolution, the receiving school district(s) for contract purposes (see Appeal of Dwyer, 26 Ed Dept Rep 129, Decision No. 11,701).  Petitioner has articulated no basis that would allow the taxpayers to designate with which districts to contract.  Petitioner’s claim that her right to vote has been impinged by respondent’s actions is therefore without merit and petitioner has not met the “substantial burden of proving the necessity for such relief” based on actual hardship to the students attending the designated school(s) (Appeal of Dwyer, 26 Ed Dept Rep 129, Decision No. 11,701; Matter of Hull, et al., 6 id. 28, Decision No. 7,675).   

In that regard, I also do not find any evidence in the record that respondent acted in a manner that was arbitrary or capricious or without a rational basis.  According to respondent, it made numerous attempts to negotiate a successor agreement with Tuxedo; however, the two districts could not agree on certain terms, specifically with regard to the tuition rate and Tuxedo’s ability to apply for a charter school conversion.  Petitioner submitted no reply or any other evidence to refute respondent’s explanation.  Therefore, petitioner has failed to meet her burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief.

THE APPEAL IS DISMISSED.

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