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Decision No. 15,371

Appeal of H. GENE SAMUEL from action of the Board of Education of the Penfield Central School District regarding use of a district-owned vehicle by an employee.

Decision No. 15,371

(March 6, 2006)

Harris Beach PLLC, attorneys for respondent, David W. Oakes, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the policy of the Board of Education of the Penfield Central School District ("respondent") concerning employee use of district-owned vehicles. The appeal must be dismissed.

Petitioner is a resident and taxpayer in respondent's district. In August 1998, petitioner became aware of a practice whereby respondent's Director of Buildings and Grounds ("director") was provided with the use of a district-owned vehicle, which he was allowed to use to commute to work. Petitioner obtained an unsigned, undated memorandum entitled "Employee use of District-Owned Vehicles" which explained that the director was authorized to use a district-owned vehicle to commute because he was "on call" at all times. Petitioner corresponded with respondent throughout 2003 and 2004, expressed concern about the practice and questioned respondent's lack of an official policy concerning the use of school-owned vehicles.

On January 11, 2005, respondent adopted Policy #3555 entitled "Employee Use of District Owned Vehicles" which, among other things, allows a vehicle to be assigned to the director "for 24 hour access and commuter use."

Petitioner contends that Policy #3555 codified the wrongful practices he has complained of for years. He argues that providing a vehicle for commuting is capricious and gratuitous and that the restrictions are impracticable. Petitioner maintains that driving a vehicle between work and home is personal use. He also alleges that through district records he has determined that the mileage logged to the director's vehicle is excessive. Petitioner asserts that respondent has understated the taxable cost of providing the director with a vehicle for purposes of reporting it as income to the Internal Revenue Service.

Petitioner requests that any further use of a district-owned vehicle by the director for commuting purposes be stopped, that Policy #3555 be revoked and revised, that respondent recalculate the gross compensation for the director for the past six years (based on the true value of his vehicle use), and that respondent append a district logo on school-owned vehicles. Petitioner further requests that respondent recalculate the original purchase cost of each vehicle which has been assigned to the director and that it not consider expenses related to those vehicles tax-exempt. He also requests that the Commissioner render an opinion as to potential violations of Public Officers Law �73(5).

Respondent contends that the director uses the vehicle for work purposes and that it allows the director to drive the vehicle between home and work because he is on call at all times. Respondent claims that variances in the mileage and gasoline records are due to the unpredictable nature of the director's job, and other use of the vehicle, not due to excessive personal use. Respondent contends that all data provided by petitioner concerning the vehicle from July 2004 to September 2004 is irrelevant because the vehicle in question was not assigned to the director during that time. Respondent maintains that Policy #3555 is valid. Additionally, respondent asserts that the action is untimely, that petitioner lacks standing, and that any issue concerning Policy #3555 is moot.

I will first address the procedural issues raised by respondent. Respondent claims that petitioner does not have standing to bring this appeal. 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 Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Bermudez, 41 id. 355, Decision No. 14,712). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Polmanteer, 44 Ed Dept Rep 221, Decision No. 15,155; Appeal of Murphy, 39 id. 562, Decision No. 14,311). District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeal of Allard, 43 id. 167, Decision No. 14,957). Petitioner is challenging an expenditure of district funds and, as a resident of the district, has standing to bring this appeal.

Respondent further contends that the appeal is 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 O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). This appeal was commenced on February 4, 2005. Therefore, to the extent that petitioner's claims concern the use of a vehicle by the director on or after January 5, 2005 or the policy adopted on January 11, 2005, they are timely. Petitioner offers no good cause for his delay concerning matters that occurred prior to January 5, 2005. Accordingly, I find petitioner's remaining claims untimely.

Respondent also claims that any issues concerning Policy #3555 are 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 B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). To the extent that petitioner challenges this policy enacted on January 11, 2005, the appeal is not moot.

In addition, petitioner asks me to find that there has been a violation of Public Officers Law �73(5). However, Public Officers Law �73(14) vests exclusive jurisdiction over these matters in the State Ethics Commission, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner of Education. Therefore, I have no jurisdiction to address the alleged ethics violations in this appeal.

Petitioner requests that I find that the W-2 forms filed by respondent for the director for the past six years are incorrect. To the extent that this claim is timely, it must be dismissed because the director is not named as a party to this action. 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 D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of R.M. and L.M., 44 id. 218, Decision No. 15,154; Appeal of Hoffman, 43 id. 160, Decision No. 14,953). 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 D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of Hoffman, 43 id. 160, Decision No. 14,953). Petitioner neither named nor served the director with this petition. The director's rights would be adversely affected by a determination in favor of petitioner on this point. Therefore, this claim must be dismissed.

Finally, the appeal must be dismissed on the merits. 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 Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). Petitioner asks that I order the revocation of Policy #3555, however, he has failed to demonstrate that the policy is arbitrary, capricious or illegal.

Petitioner presents mileage logs and gas pump receipts from 2003 and 2004, which are not timely. Even if this evidence was timely, it does not support petitioner's contention of illegal use by the director. Respondent indicates that the director's vehicle was actually assigned to another maintenance employee in July 2004. Thus, many of the documents submitted by petitioner for 2004 do not relate to the director. Respondent also maintains that the director's vehicle was often used to transport district employees to conferences in distant locations such as Long Island. Thus, petitioner has failed to meet his burden of proving that respondent's policy is arbitrary, capricious or illegal.

Although I am dismissing this appeal, I note that in his affidavit, respondent's assistant superintendent for business states that the district's record-keeping concerning its vehicles could be improved and that he intends to recommend a more stringent sys tem to track such use. I encourage respondent to re-evaluate the record-keeping system to address these issues, to ensure both proper use of district vehicles and public understanding of district policies.

THE APPEAL IS DISMISSED.

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