Appeal of LAURIE FREY from action of the Community District Education Council 3 and the New York City Department Education regarding a resolution and application for the removal of Joseph A. Fiordaliso as President of Community District Education Council 3.

Decision No. 17,308

(January 19, 2018)

Zachary W. Carter, Esq., Corporation Counsel, attorneys for respondents, Lauren Almquist Lively, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges a resolution adopted by Community District Education Council 3 (“CDEC3” or “the council”), which is overseen by the Chancellor of the New York City Department of Education (“NYCDOE”) (collectively, “respondents”) regarding certain capital renovations.  Petitioner also seeks removal of Joseph A. Fiordaliso (“respondent Fiordaliso”) from his position as President of CDEC3.  The appeal must be dismissed and the application denied.

According to respondents, the Beacon Building is leased to NYCDOE through 2020.  The record reflects that, on or about October 2012, NYCDOE staff informed CDEC3 that the high school currently occupying the Beacon Building would relocate at the end of the 2014-2015 school year and leave the building vacant.  NYCDOE staff further notified CDEC3 of potential building capacity issues and requested that CDEC3 solicit feedback from the community as to: (1) whether the Beacon Building should be used as a school; and (2) how to address student capacity issues.  CDEC3 conducted meetings regarding these issues throughout the next year.

In November 2013, NYCDOE officials made a presentation to CDEC3 regarding middle school capacity.  The NYCDOE officials stated that middle school enrollment may, within several years, rise to a level approaching the district’s capacity.

On December 2, 2013, CDEC3 held a special meeting to discuss the building usage for the Beacon Building.  Nine members were present during this meeting, including respondent Fiordaliso.  A construction management professional, who had been invited by a member of the council, gave a presentation assessing the state of the Beacon Building.  The presenter stated that improvements to the building were necessary, and that the building’s structure allowed for flexibility in making such modifications.  At the meeting, the council discussed grade configuration, whether the Beacon Building should house a middle school and a high school, enrollment criteria, curriculum, the selection of a school leader, and issues regarding the lease of the Beacon Building.  The council voted, in a six to three vote, to recommend that a school for grades six through 12 be sited in a renovated Beacon Building.  Respondent Fiordaliso volunteered to draft a resolution outlining CDEC3’s proposed plan for the Beacon Building.

On December 11, 2013, CDEC3 unanimously approved, by a 10-0 vote, a resolution drafted by respondent Fiordaliso recommending that capital improvements/renovations be made to the Beacon Building, subject to the approval of the NYDOE and the New York City School Construction Authority.  The resolution stated that improvements to the Beacon Building would include, among other things: enlargement of the cafeteria; creation of a gymnasium appropriate for ages 10-18; creation of an auditorium space which included a stage and audience seating; and creation of an outdoor recess area.  The resolution further stated that the scope of the renovations would be determined through an open and collaborative process, and that the final decision would be made with input from the community.  This appeal ensued.

Petitioner asserts that respondent Fiordaliso had an impermissible conflict of interest when he voted in favor of the resolution.  Specifically, petitioner contends that respondent Fiordaliso is a partner of a lobbying firm that does business with a construction company which has worked on previous jobs in the Beacon Building.  Petitioner contends that there is an actual or potential conflict because respondent Fiordaliso’s company will have a financial interest in any subsequent contract for the work described in the December 11 resolution.  Petitioner further asserts that respondent Fiordaliso failed to disclose such conflict of interest and that, as a result, the resolution is tainted with the appearance of impropriety.  For relief, petitioner requests that the resolution be declared null and void.  Petitioner also seeks respondent Fiordaliso’s removal from CDEC3.

Respondents argue that petitioner lacks standing to maintain the appeal.  Respondents further contend that petitioner seeks an advisory opinion because the resolution to which she objects was non-binding.  Respondents further argue that respondent Fiordaliso, as a member of the CDEC3, is not a “school officer” subject to removal pursuant to Education Law §306 and that, in any event, respondent Fiordaliso did not have an impermissible conflict of interest.

First, I must address several preliminary matters.  Respondent objects to petitioner’s reply as untimely.  A reply shall be served within 10 days after service of the answer to which it responds unless an extension is granted (8 NYCRR §§275.14[a] and 276.3).  Moreover, section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  Here, petitioner served a version of the reply “without proofreading corrections” on February 27, the final day for timely service of the reply.  This version of the reply did not contain an affidavit of verification.  On March 4, petitioner subsequently served an “amended verified reply” containing an affidavit of verification sworn to on March 4.  In a letter also dated March 4, petitioner requests that I excuse her delay in submitting a “proofed/corrected copy” of the reply.  Petitioner acknowledges that she failed to request an extension of time in which to serve her reply (see e.g. Appeal of M.C. and G.C., 49 Ed Dept Rep 200, Decision No. 16,000).  Under these circumstances, I have not considered petitioner’s untimely reply.

In addition to being untimely, petitioner’s reply improperly contains new allegations that were not raised in her petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).

Respondents contend that the appeal must be dismissed for lack of 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 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 record reveals that petitioner resides within the community school district which CDEC3 oversees and has children who attend public schools within such district.  In her petition, petitioner contends that she has “suffered injury to [her] right to have [her] interests as a public school parent openly and fairly represented, and with full integrity, by community council member[s] on matters impacting the welfare of my children and their education.”  To the extent petitioner alleges that respondent Fiordaliso, as a member of the CDEC3, acted improperly and seeks his removal, I find that petitioner, as a resident of community school district 3 and the parent of children who attend public schools within such district, has standing to bring such claims.

However, with respect to petitioner’s claims against respondent Fiordaliso and request for his removal pursuant to Education Law §306, the matter is moot.  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).  I take judicial notice of public information indicating that respondent Fiordaliso no longer serves as a member of CDEC3.  Petitioner’s request, therefore, is academic.

To the extent that petitioner challenges the December 11, 2013 resolution and seeks its nullification, I find that she lacks standing to do so.  Petitioner does not allege that any of her children are attending or will attend school in the Beacon Building or that she or her children would otherwise be directly affected by the December 11 resolution or would suffer direct personal damage or injury to their civil, personal or property rights because of CDEC3’s adoption of the December 11 resolution (see Appeal of Kroening, et al., 53 Ed Dept Rep, Decision No. 16,579).

Nor does petitioner establish standing to challenge the December 11 resolution as a resident and taxpayer.  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 with respect to, for example, its students or employees, or to challenge school district policies (see e.g. Appeal of Hertel, 49 Ed Dept Rep 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; Appeal of Ehnot, 37 id. 648, Decision No. 13,948; Appeal of Sullivan, 33 id. 566, Decision No. 13,152).  As discussed below, the record indicates that the December 11 resolution was a non-binding action taken by the CDEC3.  Petitioner does not assert an illegal expenditure of district funds nor does she allege actions such as fraud, waste or collusion on the part of district officers that would impact her rights as a taxpayer (see Appeal of Roth, 50 Ed Dept Rep, Decision No. 16,171).  Accordingly, I find that petitioner lacks standing to maintain the appeal.

Moreover, even if petitioner had standing to challenge the December 11, 2013 resolution, her claims are premature, warranting dismissal.  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).  The record indicates that the December 11 resolution did not commit CDEC3 or respondents to any particular action, as the resolution specified that “the final decision on the new school proposal, including its model, key attributes, admissions method and leadership” would be made:

in an open collaboration with ... the community through CEC3 and other stakeholders including community representatives as determined by CEC3 to be formal members of the school proposal working group.

Thus, petitioner’s objection to the resolution and respondent Fiordaliso’s vote for this non-binding resolution because he allegedly had a personal or financial interest in any resultant contract is premature.  The crux of petitioner’s argument is that respondent Fiordaliso is a registered lobbyist who voted in favor of the December 11 resolution so that his clients would eventually be awarded contracts with respondent board.[1]  However, the record indicates that the December 11 resolution merely “expressed the desire” of CDEC3 to take certain actions and did not commit respondents to proceed with the plan.  Therefore, petitioner’s allegations regarding possible contract bids from or awards of contracts to any entity affiliated with respondent Fiordaliso’s lobbying business are premature and speculative.  Therefore, because petitioner’s claims are premature, the appeal must be dismissed.

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

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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