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

Decision No. 17,451

(July 16, 2018)

Zachary W. Carter, Esq., Corporation Counsel, attorneys for respondents, Stephen Kitzinger, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges certain actions of the Community District Education Council 3 (“CDEC3”), which is overseen by the Chancellor of the New York City Department of Education (“NYC DOE”), and Joseph A. Fiordaliso, as president of CDEC3 (“respondent Fiordaliso”), in adopting and advancing a resolution regarding a playground owned by the New York City Department of Parks and Recreation (“Parks Department”).  Petitioner seeks annulment of the resolution and also seeks the removal of respondent Fiordaliso from his position as president of CDEC3.  The appeal must be dismissed, and the application must be denied.

On April 10, 2013, CDEC3 met to discuss repairs to a playground located within its district, which is referred to in the record as “Playground 89.”  According to the record, petitioner is a member of the P.S. 166 parent-teacher association (“PTA”) in Community School District 3 (“CSD3”) and served as the secretary of CDEC3 at that time.  Nine of CDEC3’s eleven members, including respondent Fiordaliso, attended the meeting.  In a 9-0 vote, CDEC3 approved a resolution demanding that respondent Parks Department promise in writing to complete safety renovations to Playground 89 during the summer of 2013 (the “April 10 resolution”).

On December 13, 2013, in response to a request by petitioner pursuant to the Freedom of Information Law (“FOIL”), petitioner received a copy of a letter dated August 20, 2013 by respondent Fiordaliso to the Director of Capital Projects in the New York City Public Design Commission.  This letter transmitted the April 10, 2013 resolution and requested, on behalf of the CDEC3, that the Parks Department place the safety improvement project for the playground on its agenda for approval at its next meeting.

Although not entirely clear, petitioner appears to claim that respondent Fiordaliso’s transmittal of the April 10, 2013 resolution to the Parks Department without copying the PTA on such correspondence improperly circumvented the P.S. 166 PTA and violated petitioner’s right to be informed, to be fairly represented and to have an equal vote.  Petitioner contends that respondent Fiordaliso’s action to reschedule a capital renovation of the playground without prior notice to her and “every P.S. 166 parent/guardian” violates “our right to know and our right to have our say.”  Petitioner also argues that approval by the PTA membership was required before any playground project could be approved and advanced, that such approval had not been obtained and that, in failing to obtain such approval, respondent Fiordaliso’s transmittal of the April 10, 2013 resolution violated her right as a PTA member “to be informed, [her] right to open meetings and [her] right to have an equal vote.”  Petitioner asserts that the PTA membership did not vote on the playground proposal and that “the scope and design meeting held at PS 166 last April was a secret, closed meeting” with no notice to the PTA. 

Petitioner also alleges that respondent Fiordaliso had an impermissible conflict of interest at the time that he voted in favor of the resolution.  While not entirely clear, it appears that petitioner alleges that respondent Fiordaliso, who is a registered lobbyist in New Jersey, voted for the April 10, 2013 resolution in the hope that one of his clients would obtain any eventual contract for work on Playground 89. 

As relief in her appeal, petitioner requests that the April 10, 2013 resolution of the CDEC3 be annulled and that respondent Fiordaliso be removed from CDEC3.

Respondents assert that the appeal and application must be dismissed as untimely.  Respondents also assert that the appeal must be dismissed as against the Parks Department for lack of jurisdiction.  Respondents contend that petitioner seeks an advisory opinion because the resolution to which she objects is non-binding.  Respondents maintain that respondent Fiordaliso, as a member of CDEC3, is not a “school officer” subject to removal pursuant to Education Law §306 and that, in any event, respondent Fiordaliso does not have an impermissible conflict of interest.

I must first address several procedural matters.  On March 7, 2014, petitioner served a reply to respondents’ answer.  Commissioner’s regulations provide that a reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  Here, respondents’ answer was served by mail on February 18, 2014; consequently, petitioner’s reply was required to be served on March 4, 2014.  Petitioner’s reply was not served until March 7, 2014 and petitioner offers no excuse for the delay.  Therefore, the reply is untimely and will not be considered.

To the extent that petitioner intends to maintain this appeal on behalf of the PTA or its members, she lacks standing to do so.  Petitioner submits no evidence that she is authorized to represent the PTA in any matter.  While petitioner may appeal on her own behalf as a resident of CSD3 and the parent of children who attend public schools within such district, she lacks standing to assert the rights of others (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; see Appeal of Schuler, 37 id. 512, Decision No. 13,915; Appeals of Cappa, 36 id. 278, Decision No. 13,724).   

To the extent that petitioner alleges that respondents’ actions violate the Open Meetings Law, such claims are not properly before me.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of McColgan and El-Rez, 48 id. 493, Decision No. 15,928).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

Next, respondents argue that petitioner’s claims regarding the Parks Department cannot be maintained in this appeal because I lack jurisdiction over the Parks Department.  Although petitioner does not challenge any action of the Parks Department nor seek any relief against it, respondents are correct that the Parks Department is not subject to the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310 (see e.g. Appeal of Giglia, 38 Ed Dept Rep 454, Decision No. 14,070).

As relief, petitioner seeks removal of respondent Fiordaliso pursuant to Education Law §306.  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 administrative notice that the official website for the NYCDOE indicates that respondent Fiordaliso no longer serves as a member of CDEC3.  Petitioner’s application for respondent Fiordaliso’s removal from office is, therefore, moot, warranting denial.[1]

The appeal must be dismissed as 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).

Here, petitioner appears to challenge the validity of the CDEC3’s April 10, 2013 resolution and its transmittal to the Parks Department.  However, other than the removal of respondent Fiordaliso, the only remaining relief demanded by petitioner is annulment of the April 10, 2013 resolution.  However, petitioner did not properly commence the appeal until January 14, 2014,[2] more than nine months after the challenged resolution was approved.  While it is unclear from the record whether petitioner attended the April 10, 2013 meeting at which the resolution was approved, the record reflects that this was a public meeting and, further, that petitioner served as secretary of CDEC3 during this time.  It is unclear whether petitioner’s allegation of a “secret” April meeting is intended to reference the April 10, 2013 meeting.  If so, petitioner has presented no evidence in support of her conclusory allegation.  Thus, any challenge to the April 10, 2013 resolution and request for its annulment should have been commenced no later than May 10, 2013.  Petitioner’s commencement of her appeal more than nine months after the resolution was approved is untimely.    

In light of this disposition, I need not address the parties’ remaining contentions.  I note briefly, however, that petitioner’s allegations and evidence concerning respondent Fiordaliso’s alleged conflict of interest are substantially similar to those raised in Appeal of Frey (57 Ed Dept Rep, Decision No. 17,208) in which it was noted in dicta that respondent Fiordaliso made several assertions in an affidavit indicating that no such alleged conflict existed.

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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