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Decision No. 16,913

Appeal of KATHY SIDMORE, on behalf of the Taxpayers of Belleville Henderson Central School District, from action of the Board of Education of the Belleville Henderson Central School District regarding transportation to nonpublic schools.

Decision No. 16,913

(June 10, 2016)

Dominic S. D’Imperio, Esq., attorney for respondent

ELIA, Commissioner.--`Petitioner appeals from action of the Board of Education of the Belleville Henderson Central School District (“board” or “respondent”) providing transportation to certain students attending nonpublic schools.  The appeal must be dismissed.

Petitioner is a resident and former employee of respondent’s school district.  She brings this appeal on behalf of district taxpayers.  Petitioner alleges that respondent improperly provided transportation to certain resident students attending nonpublic schools during the 2014-2015 school year in violation of Education Law §3635.  As relief, petitioner seeks a determination that respondent “wrongfully and willfully disregarded Section 3635 of the Education Law as it pertains to the private school transportation of students” and requests that “respondent cease and desist providing private school transportation unlawfully.”

Respondent contends that the appeal should be dismissed on procedural grounds because the petition is not verified; petitioner failed to join necessary parties; and the appeal is untimely.  Respondent also maintains that petitioner has failed to state a claim and that its provision of transportation to students attending nonpublic school was in all respects proper.

I must first address several procedural issues.  Although not raised by respondent, I note that petitioner attempts to bring this appeal on behalf of district taxpayers.  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).  Petitioner has failed to do either in this appeal and class status is therefore denied.

Respondent asserts that the appeal must be dismissed because the petition was not verified.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  The petition submitted to my Office of Counsel contained the requisite verification.  Although petitioner should have included a copy of the verification with the papers served on respondent, I will excuse this omission because petitioner is not represented by counsel and my Office of Counsel received a verified petition (see Appeal of Carangelo, 49 Ed Dept Rep 217, Decision No. 16,006; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

However, the appeal must be dismissed for failure to join 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).

As relief, petitioner seeks to have respondent cease and desist from providing transportation for certain students attending nonpublic schools.  Were petitioner to prevail, those students receiving transportation to nonpublic schools would be adversely affected.  Therefore, they are necessary parties and petitioner’s failure to join them as respondents warrants dismissal of the appeal.

Even if the appeal were not dismissed for failure to join necessary parties, it would be dismissed as 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).  The record indicates that the board approved the challenged nonpublic transportation at its April 7, 2014 meeting.  An appeal from that action was required to be commenced on or before May 7, 2014.  However, this appeal was not initiated until November 10, 2014, well beyond the required 30-day time period.  Therefore, the appeal is untimely.

Finally, the appeal is also 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner challenges respondent’s provision of transportation to students in nonpublic schools for the 2014-2015 school year.  Because the 2014-2015 school year has ended, the appeal is dismissed as moot.

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

THE APPEAL IS DISMISSED.

END OF FILE