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Decision No. 17,393

Appeal of MELISSA RUTKOSKE, on behalf of CONCERNED PARENTS OF BEACON CITY SCHOOL DISTRICT from action of the Board of Education of the City School District of the City of Beacon regarding board practices.

Decision No. 17,393

(May 22, 2018)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent[1], Michael K. Lambert, Esq., of counsel

ELIA, Commissioner.--Petitioner Melissa Rutkoske, a district resident and taxpayer, appeals on behalf of Concerned Parents of Beacon City School District (“Concerned Parents”) from various actions taken by the Board of Education of the City School District of the City of Beacon (“respondent board”), its school attorney and superintendent (collectively, “respondents”).  The appeal must be dismissed.

Petitioner Rutkoske asserts that Concerned Parents is a group of parents who support and endorse the instant petition.  Petitioner Rutkoske is an individual taxpayer and community member who resides within respondent board’s district.  In her verification of the petition, petitioner Rutkoske asserts that she is “the Petitioner on behalf of the Concerned Parents of the Beacon City School District.” 

According to petitioner, between the fall of 2014 and a board of education meeting which allegedly occurred on October 14, 2015, respondent board and its officials and staff committed various actions which petitioner characterizes as “incompetent, unethical, inappropriate and illegal behaviors [which] are ongoing and continuous.”  Petitioner cites numerous examples of such conduct; for example, petitioner states that respondent board and respondent’s attorney allowed a board meeting to continue even though the meeting room was over “fire code capacity”; that unethical personal relationships existed between respondent board’s staff, officials and individuals within the district; that personal affairs as well as business were conducted using the district’s email system; that improper gifts were made from a district official to an official of the Beacon Teacher’s Association (“BTA”); that respondent board’s administrative power was used improperly to assist in teacher promotion, teacher transfer, and student placement; and that the school attorney failed to properly investigate or review such alleged improper behaviors. 

Petitioner seeks “[i]nvestigation, audit, and oversight” by the New York State Education Department into the above allegations.  Petitioner further seeks an order “[d]irecting the [b]oard to remove the [superintendent] for cause” and to hire a new law firm to represent the district.

Respondents claim, inter alia, that petitioner’s allegations are without merit and stem from a personal vendetta harbored by petitioner Rutkoske.  Respondents assert that Concerned Parents “is, at best, an unincorporated association” which lacks standing to maintain the instant appeal.  Respondents claim that petitioner inappropriately gained access to district emails attached as exhibits to the petition.  Respondents also argue that petitioner failed to properly identify a respondent or respondents in the caption of the appeal, thus mandating dismissal for failure to join necessary parties.  Respondents further contend that the petition must be dismissed for lack of proper service and as untimely.  Respondents additionally claim that the officer of the BTA of whom petitioner complains has resigned and, thus, any matters regarding this individual are moot.  Respondents also assert that petitioner has failed to establish a clear legal right to the relief sought.  Respondents also object to the fact that the petition does not contain petitioner’s name, telephone number, or post office address as required by 8 NYCRR §275.4(a).

As an initial matter, by letter dated January 25, 2016, respondents object to petitioner’s reply, claiming that it contains new material and was not served on their attorney as required by §275.8(b) of the Commissioner’s regulations.  Petitioner’s affidavit of service indicates that the reply was served upon “the Clerk of the Board.”  As respondents note, the Commissioner’s regulations require that “all subsequent pleadings and papers shall be served upon the adverse party or, if the adverse party is represented by counsel, upon such party’s attorney” (8 NYCRR §275.8[b]).  Accordingly, I have not considered petitioner’s reply (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335).

Concerned Parents lacks standing to bring this appeal.  As respondents note, there is no evidence in the record suggesting that Concerned Parents is an incorporated association.  Petitioner has merely attached to her petition a list of signatures allegedly belonging to district residents who “support” the instant petition.  An unincorporated association lacks standing to maintain an appeal under Education Law §310 (Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,282; Appeal of Torres, 46 id. 301, Decision No. 15,515).  Moreover, an individual representative of an unincorporated association has no greater standing to maintain an appeal pursuant to Education Law §310 than the association itself (Appeal of Beilman, 38 Ed Dept Rep 644, Decision No. 14,109; Appeal of Ben-Reuben, et al., 33 id. 299, Decision No. 13,055).  Therefore, neither Concerned Parents nor petitioner Rutkoske, as an individual representative of such unincorporated association, may maintain the instant appeal.

However, although not entirely clear from the petition, to the extent petitioner Rutkoske intends to bring this proceeding on her own behalf as a district resident and taxpayer, she has standing to do so to the extent she is aggrieved.[2]  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 Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  To the extent petitioner Rutkoske attempts to assert claims on behalf of other parents, however, she lacks standing to do so.  (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874). 

The appeal must be dismissed for failure to join necessary parties.  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  As described herein, petitioner raises claims and seeks relief that, if granted, would adversely affect, at a minimum, the board, the superintendent and the school attorney.  However, she has failed to name any of them in the caption of the appeal. Indeed, the caption in this matter as submitted by petitioner Rutkoske reads as follows:

In the Matter of Concerned Parents of Beacon City School District requesting New York State Education oversight due to unethical, illegal and inappropriate conduct of the leadership of the Beacon City School District.

Moreover, petitioner has not personally served the board, superintendent or school attorney.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).  The record indicates that the instant appeal was served only upon the district treasurer.  Although petitioner’s affidavit of service indicates that the district treasurer is authorized to accept service on behalf of the district, the treasurer has submitted an affidavit herein whereby she attests that she is not authorized to accept service on behalf of the district.  On this record, therefore, in light of the conflicting affidavits, I find that the evidence regarding service of the petition on respondent is in equipoise and petitioner has not met her burden of proving that proper service was made on respondent board (see Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623).

Moreover, the record contains no evidence of personal service upon the superintendent and school attorney.  Therefore, because each individual and entity would clearly be affected by a determination in petitioner’s favor, the appeal must be dismissed for failure to join necessary parties.

To the extent petitioner seeks an order directing respondent board to remove the superintendent, such request must also be dismissed as 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  I take administrative notice of information published on the district’s website indicating that Barbara Walkley is no longer the district’s superintendent.  Therefore, subsequent events have rendered petitioner’s request academic (see Appeal of Budich and MacDonald, 54 Ed Dept Rep, Decision No. 16,774).

Furthermore, petitioner’s request for the removal of the school district’s attorney and the hiring of a new law firm to replace him amounts to a request that I remove the school attorney pursuant to Education Law §306.  It is well established, however, that a school attorney is not an officer of the district and, therefore, not subject to removal from office by the Commissioner of Education (Application of Balen, 40 Ed Dept Rep 250, Decision No. 14,474; Application of Rojek and Spadone, 24 id. 434, Decision No. 11,453; Application of Sterling, 23 id. 294, Decision No. 11,223).  Accordingly, the appeal must be dismissed against the school attorney.  

Finally, to the extent petitioner seeks an investigation, an audit, and/or the oversight by the New York State Education Department “into the behaviors of” the board and various individuals, including the superintendent and school attorney, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] As described more fully below, the original caption submitted by petitioner in this matter identified only the “leadership of the Beacon City School District.”  As a result, respondent’s counsel asserts that, in “an exercise of caution,” the verified answer is submitted on behalf of the “leadership of the Beacon City School District.”

 

[2] In light of this determination, references below to “petitioner” refer to petitioner Rutkoske, the sole petitioner with standing to maintain the instant appeal.