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Decision No. 13,893

Appeals of RICHARD D. TODD from action of the Board of Education and the Superintendent of the Cobleskill-Richmondville Central School District regarding a budget advisory committee.

Decision No. 13,893

(March 23, 1998)

Parshall & West, attorneys for respondent, Michael A. West, Esq., of counsel

Mills, Commissioner.--Petitioner appeals the composition of a Community Budget Committee, organized by the Board of Education of the Cobleskill-Richmondville Central School District ("board") in January 1997 and discharged in June 1997. Petitioner also seeks removal, pursuant to Education Law "306, of the superintendent of schools and the members of the board ("respondents"). Petitioner filed two separate appeals. However, because they are virtually identical, they are consolidated for decision. The appeals must be dismissed.

Respondent board adopted a resolution on December 9, 1996, to create a Community Budget Committee ("committee") comprised of community residents, to provide input to the board on a strictly advisory basis regarding preparation of the district's budget. The committee was authorized to obtain information from school district personnel regarding the budget, solicit input from residents and taxpayers, and make recommendations to the board on the budget. The resolution specifically stated that the board could accept, reject or modify any committee recommendations, and that all action stemming from committee reports was the sole responsibility of the board.

The board chose eleven community members, including petitioner, for the committee in January 1997. On April 25, 1997, the committee forwarded to the board a list of budget recommendations addressed by the committee at its terminating session on April 17, 1997. The committee was discharged on June 4, 1997.

Initially petitioner filed a petition dated August 4, 1997, against the board, but my Office of Counsel returned the petition on August 13, 1997 because it was not verified, lacked the notice required for removal proceedings (8 NYCRR "277.1[b]), and had an insufficient affidavit of service. Petitioner subsequently filed two separate appeals with virtually identical petitions verified on August 19, 1997, to appeal the membership of the committee and seek removal of respondents. Respondents filed one answer in response to both appeals.

Petitioner contends that several of the committee members had a direct conflict of interest or were biased in favor of the district, due to alleged financial ties or having served in an official capacity with the district. Petitioner alleges that certain residents who had volunteered due to strong budget concerns were not chosen, yet other residents who had not volunteered nevertheless had been invited to join the committee. Petitioner alleges that the committee was a premeditated scheme to mislead residents into believing that the committee reflected a cross-section of the community, and was only intended to help pass the new school budget on June 4, 1997. Petitioner seeks immediate removal of the superintendent and entire board, and criminal prosecution of all respondents. Petitioner also seeks an order holding respondents personally and financially responsible for all excessive spending directly or indirectly caused by their alleged improper procedures, and requiring the Commissioner to oversee all future spending in the district.

Respondents deny petitioner’s claims, and assert that it was within the purview of the board to appoint this temporary, purely advisory committee and that there was no delegation of authority or powers reserved to the board. Respondents also contend that the petitions are defective in form and content, are untimely, and that the Commissioner lacks jurisdiction to afford the relief requested. Respondents further claim that petitioner lacks standing to bring these appeals, either in his personal capacity because he is not an aggrieved party, or on behalf of other district residents, and that the petitions are moot in any event because the committee was discharged in June 1997.

Initially, I will address respondents’ contention that the August 19, 1997 petitions are defective. Although the petitions are typed in the format of a "Supporting Deposition" in a criminal matter in the Village of Schoharie Village Court, the petitions clearly allege bias and conflict of interest in the membership of the committee, and specify the relief sought including removal. The petitions are verified, identify the respective respondents, and include the required notices of petition. Where, as here, petitioner is not represented by counsel, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to respondents (Appeal of Loughlin, 35 Ed Dept Rep 432; Appeal of Roxbury Taxpayers Alliance, 34 id. 576; Appeal of Moessinger, 34 id. 246). Because respondents have answered the allegations, and have not established that they were prejudiced by any alleged inadequacy of the petitions, I will not dismiss the appeals on that basis (Appeal of Brazile, et al., 35 Ed Dept Rep 456; Appeal of Rackley, 35 id. 5).

Respondents correctly assert, however, that the appeals are untimely. An appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The 30-day limitation period also applies to removal applications made pursuant to Education Law "306 (8 NYCRR "277.1; Application of Eagelfeld, 36 Ed Dept Rep 186; Application of Cotroneo, 29 id. 421; Application of Quinones, 25 id. 497). Petitioner complains solely about the composition of a committee organized in January 1997 and discharged on June 4, 1997, and raises no claims regarding the actions of the committee during its term of existence or actions taken by the board based on recommendations by the committee. The petitions were verified and served in August 1997, more than six months after the committee was formed, more than two months after it was disbanded, and more than 30 days after petitioner received final information concerning the alleged financial conflict of interest of one committee member. No excuse was proffered by petitioner for the delay. Thus, the petitions in both appeals are untimely and must be dismissed.

Petitioner also lacks standing to pursue these appeals. To maintain an appeal pursuant to Education Law "310, a party must be aggrieved in the sense of having suffered personal damage or impairment to his or her civil, personal or property rights (Appeal of Szymkowiak, 36 Ed Dept Rep 204; Appeal of Goloski, 34 id. 565; Appeal of Ulcena, 33 id. 328; Appeal of Allert, 32 id. 538). Although petitioner has not established any "right" to participation on the committee, petitioner clearly is not personally aggrieved in any event by the composition of the committee since he was appointed as a member. Petitioner also purports to bring this appeal on behalf of other district residents, but lacks standing to assert the rights of others (Appeals of Cappa, 36 Ed Dept Rep 278; Appeal of Szymkowiak, supra; Appeal of Ulcena, supra).

The appeal must also be dismissed on the merits. I find that petitioner fails to state any facts which would entitle him to the relief sought. The Commissioner lacks jurisdiction in appeals brought pursuant to Education Law "310 or "306 to institute criminal proceedings (Education Law "311), or to assess monetary damages against a respondent (Appeal of Rackley, 35 Ed Dept Rep 5; Appeal of Andrews, 31 id. 453).

Petitioner also fails to show any action by respondents that would justify removal. Education Law "306 authorizes the Commissioner of Education to remove a superintendent of schools as well as a member of a board of education for willful violation or neglect of duty under the law. To be considered willful, respondents' actions must have been intentional and with a wrongful purpose (Appeal of Rampello, 37 Ed Dept Rep 153; Application of Brousseau, 35 id. 291; Application of Cobler, 35 id. 176). The petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR " 275.10; Appeal of Samuels, 36 Ed Dept Rep 85; Appeal of Nash, 35 id. 203). Petitioner fails to establish that respondents took any action that was intentionally performed with a wrongful purpose to disregard a lawful duty or violate a legal requirement, and thus fails to establish any grounds for removal of respondents under Education Law "306 (Appeal of Shavrah, 36 Ed Dept Rep 396; Appeal of Andrews, supra). Similarly, petitioner has alleged no facts whatsoever to indicate a need for my direct supervision of the district’s spending.

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

THE APPEALS ARE DISMISSED.

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