Appeal of JOHANNES C. WILLE from action of the Board of Education of the Katonah-Lewisboro Union Free School District regarding an expenditure of funds.

Decision No. 17,414

(June 25, 2018)

Ingerman Smith, LLP, attorneys for respondent, Jeffrey Cravens, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from action of the Board of Education of Katonah-Lewisboro Union Free School District (“respondent”) to enter into an agreement to charter a boat for an eighth-grade field trip.  The appeal must be dismissed.

On December 15, 2016, respondent approved an agreement with Caliber Yacht Charters (“Caliber”) to charter a boat for an “End of The Year Field Trip” for the school’s eighth-grade class.  The trip was scheduled to take place on May 18, 2017 at a cost of $34,400.00.

The record indicates that on or about December 17, 2016, a field trip approval form was signed by the middle school principal.  On or about December 19, 2016, a nonrefundable $5,000 deposit was paid to Caliber.

On December 20, 2016, a request was submitted in relation to the trip for bus transportation for 28 adults and 241 students to and from respondent’s John Jay Middle School and the Yonkers City Dock.  The request indicates that, on May 18, 2017, the students were to leave John Jay Middle School at 3:30 p.m. and were to return to the school at 10:00 p.m.  The event took place from 4:30 p.m. to 9:00 p.m. that day.

In January 2017, respondent provided the parents of all students in the eighth-grade with a letter with the details of the trip.  The letter indicated that the cost was $120.00 per person.  Accompanying the letter was a permission slip to be signed by each student’s parents and a copy of the district’s “Behavior Code for Field Trips.”

Petitioner commenced this appeal on February 27, 2017.  Petitioner’s request for interim relief was denied on March 3, 2017 and the boat trip took place on May 18, 2017.[1]

Petitioner asserts that respondent’s approval of the agreement with Caliber for the eighth-grade boat trip is impermissible.  Petitioner claims that it is a private trip and does not comply with respondent’s field trip policy.  Petitioner also argues that respondent’s use of public monies for a private trip is unlawful.  As relief, petitioner requests reversal of respondent’s December 16, 2016 resolution.  Petitioner also demands that respondent comply with its field trip policy for any and all future field trips.  Petitioner seeks an order directing respondent to refrain from sponsoring this and any private excursions in the future.

Respondent argues that petitioner’s appeal is untimely, moot, and fails to state a claim for which relief may be granted.  Respondent also maintains that the May 18, 2017 trip complies with its field trip policy and is not improperly funded by taxpayer monies. 

The appeal must be dismissed on several procedural grounds.  First, the 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).

Petitioner challenges respondent’s approval of the agreement with Caliber for the end of the year eighth-grade class trip.  As relief, petitioner seeks reversal of the board resolution approving such agreement.  Respondent acted to approve the agreement on December 15, 2016.  Therefore, petitioner was required to commence an appeal by January 14, 2017.  Petitioner did not serve the petition initiating the appeal until February 27, 2017, more than one month beyond the required 30-day period.  Petitioner sets forth no explanation for the delay in commencing the appeal.  Therefore, the appeal is untimely, warranting dismissal.

The appeal must also 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 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). 

A determination to annul respondent’s December 15, 2016 resolution approving the agreement with Caliber would adversely impact Caliber in that Caliber would not receive the financial benefit of such agreement.  Therefore, Caliber is a necessary party that should have been joined as a respondent.  Petitioner’s failure to do so warrants dismissal of the appeal.

Finally, to the extent that petitioner requests an order directing respondent to comply with its field trip policy and to refrain from sponsoring private excursions in the future, petitioner seeks a declaratory, or advisory opinion.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).

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

THE APPEAL IS DISMISSED.

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