Appeal of RON NOWAK from action of the Board of Education of the Greenwood Lake Union Free School District regarding nonresident tuition.

Decision No. 16,462

(March 29, 2013)

Lamb & Barnosky, LLP, attorneys for respondent, Robert H. Cohen, Esq., of counsel

KING, JR. Commissioner.--Petitioner challenges an action of the Board of Education of the Greenwood Lake Union Free School District (“respondent”) approving a nonresident tuition contract with the Board of Education of the Tuxedo Union Free School District (“Tuxedo”). The appeal must be dismissed.

Petitioner is a resident of respondent’s district. Respondent does not operate a high school and, pursuant to Education Law §2040, contracts with other school districts to educate its high school students. On October 17, 2012, respondent approved a nonresident tuition contract with Tuxedo for the education of some of its high school students. This appeal ensued. Petitioner’s request for interim relief was denied on November 29, 2012.

Petitioner alleges that respondent’s action approving the contract with Tuxedo was arbitrary, capricious, fiscally irresponsible and unreasonable. Petitioner maintains that the contract will result in unnecessary cost to the district, will impose an economic burden on district taxpayers and is not in the district’s best interests.

Respondent generally denies petitioner’s allegations and maintains that its action approving the nonresident tuition contract with Tuxedo was in all respects proper and in the best interests of its students. Respondent contends, among other things, that petitioner lacks standing to maintain the appeal, and that petitioner failed to join Tuxedo as a necessary party, thus warranting dismissal.

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 Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). Only persons who are directly affected by the action being appealed have 2. 429, Decision No. 15,744; , 47 . 415, Decision No. 15,740). Petitioner is challenging an expenditure of district funds and, as a resident and taxpayer of the district, has standing to maintain the appeal. standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Strade, et al., 48 Ed Dept Rep 73, Decision No. 15,797; Appeal of Russo, 47 id  Appeal of Houdekid

However, the appeal must be dismissed for failure to join Tuxedo 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, petitioner requests that I direct respondent to rescind its October 17, 2012 resolution approving the nonresident tuition contract with Tuxedo. Clearly, Tuxedo would be directly affected by a determination in petitioner’s favor. Therefore, Tuxedo is a necessary party to the appeal and petitioner’s failure to join Tuxedo as a respondent warrants dismissal.

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

THE APPEAL IS DISMISSED.

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