Decision No. 16,456
Appeal of DAWN JONES, RICHARD TIGUE, KELLY TIGUE and CHRISTINE JIMINEZ, on behalf of their children, from action of the Board of Education of the City School District of the City of Port Jervis regarding a board resolution.
Decision No. 16,456
(February 8, 2013)
Ranni Law Firm, attorneys for petitioners, Joseph Ranni, Esq., of counsel
Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Daniel Petigrow, Esq., of counsel
KING, JR., Commissioner.--Petitioners challenge an August 17, 2010 resolution of the Board of Education of the City School District of the City of Port Jervis (“respondent”). The appeal must be dismissed.
Respondent’s district consists of four schools, including the Anna S. Kuhl Elementary School (“ASK”) and the Hamilton Bicentennial Elementary School (“HBE”). The record reflects that prior to the 2010-2011 school year, elementary school students were generally required to enroll in the elementary school located within the attendance zone in which they legally resided, but that students who attended childcare at a location outside of his or her attendance zone (but still within respondent’s district) were allowed to enroll in the elementary school located within the childcare provider’s attendance zone. With respect to these students, it appears that respondent provided transportation to and from their childcare provider and the elementary school that they attended so long as this was done on a five-day-a-week basis.
By letters dated May 27, 2010, respondent’s superintendent notified parents who had requested out-of-zone elementary school placements for children that, with respect to children who had not yet enrolled in an out-of-zone school, the district would no longer allow students to attend elementary schools outside of their legal attendance zones. The superintendent advised that students who were already enrolled in out-of-zone elementary schools would be allowed to “complete” their elementary education at these schools so long as the conditions that originally allowed for the out-of-zone placement did not change. On August 17, 2010, respondent adopted a resolution (“August 17 Resolution”) to this effect, and this appeal ensued. Petitioners’ request for interim relief was denied on September 30, 2010.
Petitioners are parents of children who reside in ASK’s attendance zone, but who would like their children to attend HBE based on the location of their childcare provider. Petitioners, therefore, challenge respondent’s August 17 Resolution and request that it be declared “invalid, annulled and vacated” for a number of reasons, including that it was allegedly drafted and/or discussed in executive session, that it was passed with the vote of board member William Smith (“Mr. Smith”) who was allegedly “motivated by malice and animosity directed toward faculty members,” and that it was not implemented in accordance with appropriate policy-making procedures. In addition, petitioners contend that respondent’s August 17 Resolution will result in significant costs and hardships to parents, and that it violates Education Law §3635. Petitioners also maintain that the August 17 Resolution is “not rationally based,” is “arbitrary, capricious and contrary to sound educational policy,” and that respondent should be equitably estopped from enforcing it.
Respondent generally denies petitioners’ assertions and argues that its decision to stop allowing students to attend out-of-zone elementary schools was based, in part, on the fact that this practice also required parents to send their children to a childcare location on a five-day-a-week basis, and respondent’s belief that it could not require this in light of the decision in Appeal of Seibt, 40 Ed Dept Rep 186, Decision No 14,456. As such, respondent contends that continuing to allow students to enroll in out-of-zone elementary schools would lead to increased transportation costs and logistical problems for the district. In addition, respondent maintains that it believes that people were intentionally choosing childcare locations outside of their legal attendance zones to circumvent its general attendance zone rules and that this undermined the “educational integrity” of its schools. Respondent, therefore, argues that it acted within its authority and discretion, and that its actions were not arbitrary and capricious. In addition, respondent maintains that petitioners’ appeal should be dismissed in whole or in part for a number of procedural reasons, including that it is untimely, that petitioners failed to join Mr. Smith as a necessary party, and that I lack jurisdiction over petitioners’ Open Meetings Law claims.
As a threshold matter, I note that petitioners purport to bring this appeal on behalf of themselves and a “class” of families and children that are “affected” by respondent’s actions. However, an appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797). A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).
Here, while petitioners do set forth the number of individuals that they seek to represent, I find that they have failed to meet the other requirements for class status. For example, petitioners indicate that there are approximately 33 children affected by respondent’s actions. Assuming that this is true, this does not establish a class that is so numerous that joinder would be impractical (see e.g., Appeal of Graham, 39 Ed Dept Rep 498, Decision No. 14,292 [a class of 39 not so large as to make joinder impractical]; Appeal of Reynolds, et. al., 35 id. 327, Decision No. 13,559 [a class of 52 not so large so as to make joinder impractical]).
In addition, it appears from the record that some purported class members have children that are already enrolled in out-of-zone elementary schools, that others have children that have not yet enrolled in out-of-zone elementary schools, and that others have children that fall into both of these situations. Furthermore, while some petitioners take issue with the quality of education provided at ASK (allegations that I need not address in this matter), it appears that some members of petitioners’ purported class would actually rather have their children attend ASK and, thus, might disagree with these contentions. Accordingly, I am unable to find that all questions of law and fact are common to all purported class members, and class status must be denied.
I must next address a number of procedural issues, beginning with an “attorney reply affirmation” and “reply affidavits” (collectively “reply papers”) that petitioners have submitted for my consideration. Respondent objects to these reply papers on the basis that they are not “pleadings,” are not verified in accordance with §275.5 of the Commissioner’s regulations, and that they contain additional allegations to bolster previously asserted claims. However, it appears from the record that petitioners intended these reply papers – which are all submitted under oath – to be a reply to respondent’s answer. Further, respondent does not allege any prejudice as a result of these papers and/or their form. Accordingly, pursuant to the authority granted by §276.5 of the regulations of the Commissioner of Education (8 NYCRR §276.5), I will accept petitioners’ reply papers and treat them as a reply to respondent’s answer.
However, it is well settled that 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). Therefore, while I have reviewed petitioners’ reply papers, I will not consider those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
In addition, petitioners submit a memorandum of law for my consideration. A memorandum of law should consist of arguments of law (8 NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668). Accordingly, I have not considered those portions of petitioners’ memorandum of law that contain new facts and allegations that were not in the pleadings.
Respondent contends that petitioners’ 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). Here, petitioners’ appeal was commenced on September 15, 2010. Accordingly, while petitioners may have been aware of respondent’s proposed actions as early as May 2010 as respondent contends, I am unable to find that their appeal – which challenges respondent’s August 17 Resolution – was untimely.
Petitioners’ appeal, however, must be dismissed to the extent that they seek annulment of respondent’s August 17 Resolution on the basis that it was passed in violation of New York State’s Open Meetings Law. 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 McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886). Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.
In addition, petitioners’ appeal must also be dismissed, in part, for failing to join Mr. Smith as a necessary party. 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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). 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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).
Here, petitioners base their entitlement to relief, in part, on the alleged wrongdoing of Mr. Smith (i.e., for allegedly predicating his vote in favor of the August 17 resolution on “malice and animosity” towards certain individuals). Petitioners essentially challenge Mr. Smith’s conduct and for me to grant the relief that petitioners seek on this basis, I would need to find that Mr. Smith acted improperly. To that extent, Mr. Smith is a necessary party, and petitioners’ failure to join him as such requires the dismissal of their claims insofar as they are predicated on Mr. Smith’s alleged actions.
Turning to petitioners’ remaining claims, petitioners do not dispute that they reside within ASK’s attendance zone. Rather, petitioners essentially claim that their children should be allowed to attend a school outside of their attendance zone (i.e., that they should be able to enroll their children in HBE) because their childcare provider of choice is located there. For the reasons that follow, I find that petitioners’ claim lacks merit.
Pursuant to Education Law §§1709(3) and (33), and 2503(1) and (3), respondent board of education has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (seeMatter of Older, et al. v. Bd. of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Wachala, 49 Ed Dept Rep 31, Decision No. 15,950; Appeal of Johnson, et. al., 37 id. 465, Decision No. 13,906). In fact, Education Law §2503(4)(d) expressly authorizes city school districts like respondent to “determine the school where each pupil shall attend.” In such cases, a board’s discretion is broad (seeAppeal of Wachala, 49 Ed Dept Rep 31, Decision No. 15,950; Appeal of Johnson, et. al., 37 id. 465, Decision No. 13,906). Therefore, a board’s decision regarding school assignments will only be overturned when found to be arbitrary, capricious or contrary to sound educational policy (Matter of Older, et al. v. Bd. of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Polanco, 45 Ed Dept Rep 28, Decision No. 15,249; Appeal of Sponcy, 33 id. 126, Decision No. 12,998). 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).
As an initial matter, petitioners contend that respondent’s August 17 Resolution should be annulled because it constitutes a policy change that was not implemented in accordance with the board’s policy-making procedures. In fact, petitioners go to great length to differentiate between what constitutes a “policy,” which generally requires the approval of respondent’s policy committee and a number of “readings” before being formally adopted by respondent, and a “practice,” which is how respondent characterizes the district’s past actions. However, the record is devoid of any proof that respondent ever formally adopted a policy embodying its past practice with respect to attendance zones. Further, and as noted above, it is well within a board’s discretion to assign students to schools within a district. Thus, even assuming arguendo that respondent’s actions constitute a “policy” as petitioners allege, absent a showing that respondent’s actions were otherwise arbitrary or capricious, I cannot conclude that respondent’s alleged failure to adopt this “policy” through its usual policy-making procedures would, alone, be sufficient to overturn its August 17 Resolution. This is especially true where, as here, there has been no showing that any such failure would have constituted more than a technical violation of respondent’s procedures.
In addition, petitioners contend that respondent’s actions will result in financial and logistical hardships for them. However, while I am sympathetic to the difficulties that petitioners and their families face, personal inconvenience or hardship, though regrettable, is not a basis for overturning respondent’s decision (seee.g., Appeal of P.C., 45 Ed Dept Rep 476, Decision No. 15,386; Appeal of Lewis, 33 id. 24, Decision No. 12,962). Further, I note that Education Law §3635(1)(e) does not require school districts to provide transportation to and from childcare providers, and to the extent that districts elect to provide such transportation, they are generally allowed to limit this transportation, with limited exceptions, to childcare locations located within the attendance zone of the school the child legally attends (see Education Law §3635[e]). Hardship or inconvenience does not create an entitlement to such transportation (seee.g., Appeal of Kadukara, 51 Ed Dept Rep, Decision No. 16,345; Appeal of Wells, 49 id. 443, Decision No. 16,076). Accordingly, to the extent that petitioners may be alleging that respondent is generally required by law to provide transportation to and from an out-of-zone childcare provider of choice, I find that their claim lacks merit.
Petitioners also allege that respondent’s August 17 Resolution should be annulled because it fails “to treat all children affected thereby in like circumstances, equally,” and thus allegedly violates Education Law §3635. Though not entirely clear, it appears that petitioners’ basis for this contention is that, by allowing students who were already enrolled in out-of-zone schools to remain in those schools unless and until their childcare and/or parents’ teaching arrangements changed, these students would be treated differently than those who are not allowed to enroll in out-of-zone schools at all. However, Education Law §3635 pertains to transportation only, and it generally requires that, in situations where school districts are not required to provide transportation to students but elect to do so, such transportation be offered “equally to all children in like circumstances residing in the district.” Education Law §3635, therefore, is not applicable to attendance zone decisions. Furthermore, petitioners make no allegation that any child is being denied transportation in violation of Education Law §3635, or that circumstances exist such that a child is being treated unequally with respect to transportation. As such, I cannot find that Education Law §3635 provides a basis for the relief that petitioners seek.
Petitioners further contend that respondent’s actions were “not rationally based” and were “arbitrary, capricious and contrary to sound education policy” because there was “no economic or factual basis for the proposed change.” In particular, petitioners appear to argue that, contrary to respondent’s assertions, the district’s prior actions were legal, that Appeal of Seibt (40 Ed Dept Rep 186, Decision No. 14,456) did not require that anything be changed, and that there will be no cost savings from the board’s action. With respect to Appeal of Seibt, respondent appears to contend that it decided to “revisit” its practices regarding out-of-zone enrollment and childcare transportation in light of the decision in that case. Even if I accept petitioners’ argument that Appeal of Seibt did not compel respondent to revisit its practices regarding transportation to a child care location in their entirety, that would not provide a basis upon which to overturn an action that is itself otherwise legal and within respondent’s discretion. Likewise, whether or not there is an “economic basis” for the changes made by respondent does not, by itself, address whether respondent’s discretionary actions are otherwise arbitrary, capricious or contrary to sound educational policy. Accordingly, I am unable to find that petitioners have met their burden of establishing that respondent abused its discretion in this matter and/or that they are entitled to the relief sought.
Finally, petitioners contend that respondent’s conduct warrants the application of the doctrine of “equitable estoppel.” I disagree. It is well settled that the doctrine of equitable estoppel does not apply against a government subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Appeal of Bates, 44 Ed Dept Rep 354, Decision No. 15,196; Appeal of Perez, 42 id. 71, Decision No. 14,779). Moreover, the record reflects that petitioners had knowledge of the district’s proposed changes well in advance of the 2010-2011 school year and thus had time to make alternative arrangements.
I have reviewed petitioners’ remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE.
 The record also reflects that prior to the 2010-2011 school year, parents who were teachers in respondent’s district, and who were assigned to the elementary school located outside of their legal attendance zone, were also allowed to enroll their children in that “out-of-zone” elementary school. However, for the reasons discussed in footnote 3, this “exception” is not relevant for purposes of this appeal.
 The resolution provided in relevant part that (a) beginning with the 2010-2011 school year, newly enrolled elementary school-aged students would be required to attend the elementary school where their parents/legal guardians legally resided, (b) students who, during the 2009-2010 school year and earlier had attended an out-of-zone elementary school would be permitted to continue their education at that elementary school until their childcare provider changed or they “age out,” and (c) respondent’s policy subcommittee would recommend a “formal policy” consistent with the resolution for adoption by respondent.
 The record reflects that two petitioners also work at HBE, however neither appears to assert claims as “teachers” in this matter. Accordingly, I need not address any rights that any petitioner may have as “teachers.”
 Though not entirely clear, petitioners Dawn Jones and Kelly Tigue also appear to seek “whistleblower” protection pursuant to Education Law §3028-d. However, petitioners do not allege that any “retaliatory action” has been taken against them nor do they allege any grounds for granting such protection. Thus, I need not address this claim.
 Respondent raises other procedural defenses against individual petitioners, including that petitioners Kelly and Richard Tigue lack standing, and that the petition was not properly verified by petitioner Jiminez. Since these defenses do not apply to petitioners collectively, they are academic. Moreover, since the appeal must be dismissed for the reasons discussed below, I need not address them.