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Decision No. 15,561

Appeal of L.A., J.B., F.D.C., L.C., C.K., P.S., M.S., A.M., and M.M., on behalf of their children, from action of the Board of Education of the Pocantico Hills Central School District regarding nonresident tuition.

Decision No. 15,561

(March 30, 2007)

Morrison Cohen, LLP, attorneys for petitioners, David A. Piedra, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Susan E. Fine, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge nonresident tuition rates established by the Board of Education of the Pocantico Hills Central School District (“respondent”) for the 2006-2007 school year.  The appeal must be dismissed.

Petitioners are residents of the Union Free School District of the Tarrytowns[1].  Respondent admits nonresident students, upon payment of tuition, in accordance with an admission policy adopted on December 5, 2005.  The policy provides, in part:

Current Tuition-Paying Students

Nonresident students that were attending the District’s schools on a tuition-paying basis pursuant to prior Board policy and/or regulation, may continue to attend on a tuition-paying basis.  Tuition charges, established annually by the Board of Education ... shall be billed to the parent/lawful guardian prior to the commencement of each school semester.  Excepted from this provision are those students attending the District’s schools pursuant to a Settlement Agreement, dated September 1, 2005 ... and/or any other settlement of litigation.  The enrollment of these students in the District’s schools must be specifically authorized by the Board pursuant to a duly adopted resolution.

On April 18, 2006, respondent adopted a bifurcated nonresident tuition rate for the 2006-2007 school year pursuant to which “nonresident students enrolled in Pocantico for the 2005-2006 school year” were charged a lower tuition rate than “nonresident students newly enrolled for the 2006-2007 school year....”  The board minutes indicate that the new higher tuition rate was adopted “to ensure that the District had an approved tuition rate that is competitive and consistent with other schools” using a State approved formula (known as “the Seneca Falls formula”).

Petitioners commenced this appeal prior to the commencement of the 2006-2007 school year.  Petitioners assert that respondent intended to apply the higher nonresident tuition rate to their children if the children attended school in respondent’s district as nonresidents for the 2006-2007 school year.  Petitioners contend that respondent’s 2006-2007 bifurcated tuition rates violate the Equal Protection Clause of both the federal and State Constitutions.  They assert that the rates are arbitrary, capricious and an abuse of discretion and also were calculated erroneously.  Petitioners further complain of the manner in which respondent conducted its April 18, 2006 meeting.

Respondent asserts that petitioners lack standing to maintain the appeal, that the matter is not ripe for review and that its 2006-2007 nonresident tuition rates are correctly calculated and are consistent with law and regulation.  Respondent contends that, to the extent that petitioners assert claims under the Open Meetings Law or raise novel constitutional issues, such may not be adjudicated in an appeal to the Commissioner.

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 Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Samuel, 45 id. 418, Decision No. 15,371; Appeal of Hubbard, 45 id. 266, Decision No. 15,316).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Samuel, 45 id. 418, Decision No. 15,371; Appeal of Hubbard, 45 id. 266, Decision No. 15,316).  In addition, the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Fioretti, 45 Ed Dept Rep 188, Decision No. 15,297; Appeal of Lombardo, 44 id. 167, Decision No. 15,135; Appeals of American Quality Beverages, LLC, et al., 42 id. 153, Decision No. 14,805).

     The record indicates that none of the petitioners sought admission of their children to respondent’s schools for the 2006-2007 school year and that, currently, none of the children attend school in the district.  Respondent’s 2006-2007 nonresident tuition rates, therefore, have not been applied to petitioners.  Consequently, petitioners are not aggrieved by respondent’s 2006-2007 nonresident tuition rates; and lack standing to maintain this appeal.  In essence, petitioners seek an advisory opinion regarding the rates which is not available in an appeal pursuant to Education Law §310  (Appeal of Taber, 42 Ed Dept Rep 251, Decision No. 14,843; Appeal of a Student with a Disability, 42 id. 111, Decision No. 14,791; Appeal of Hillhouse, 41 id. 385, Decision No. 14,720).

     To the extent petitioners assert claims under the Open Meetings Law, such claims must be dismissed.  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 Stolbach, 43 Ed Dept Rep 218, Decision No. 14,977; Appeal of Taber, 42 id. 251, Decision No. 14,843; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

THE APPEAL IS DISMISSED.

END OF FILE



[1] Petitioners’ residency was the subject of the Appeals of Spectrum Communities, LLC, et al. and Edelstein, 46 Ed Dept Rep ___, Decision No. 15,474; application to review decision pending, Supreme Court, Albany County.