Appeal of DEBI SZCZEPANSKI, on behalf of her son KEITH, from action of the Board of Education of the Kendall Central School District regarding dual enrollment.

Decision No. 17,940

(November 18, 2020)

Matthew R. Fletcher, Esq., attorney for respondent

ROSA., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Kendall Central School District (“respondent”) to deny her son (“the student”) admission to the Career Pathways Justice Academy (“Justice Academy”), a program offered by the Genesee Valley Board of Cooperative Educational Services (“GV BOCES”),[1] as a dually enrolled student.  The appeal must be dismissed.

At the time of the events giving rise to this appeal, petitioner and the student resided within respondent’s school district, which is a component district of the Monroe 2-Orleans Board of Cooperative Educational Services (“Monroe 2-Orleans BOCES”).  The student attended Notre Dame High School, a nonpublic school located within the Batavia City School District, which is a component district of the GV BOCES.

In conjunction with Genesee Community College, the GV BOCES offers qualifying high school seniors’ enrollment in the Justice Academy.  By letter dated March 12, 2019, petitioner requested that respondent allow the student to enroll in the Justice Academy during his senior year at Notre Dame High School (i.e., the 2019-2020 school year).  On April 8, 2019, respondent adopted a resolution approving the student’s enrollment in the Justice Academy, subject to certain conditions.  Specifically, the resolution provided that the student’s parents would “be required to pay any and all fees associated with this program, after any aid [was] applied, and as determined by the [Monroe 2-Orleans BOCES].”  According to respondent’s superintendent, “petitioner never agreed” to this proposal.

The record indicates that, following the adoption of the resolution on April 8, 2019, the parties continued to communicate in an effort to reach an agreement permitting the student to attend the Justice Academy while complying with the requirements of Education Law §3602-c.[2]  Petitioner addressed respondent at its June 17, 2019 meeting, again seeking respondent’s permission to enroll the student in the Justice Academy.  Following a discussion, respondent adopted a resolution denying petitioner’s request, determining that the Justice Academy was “not an approved program or part of the curriculum” of respondent’s district.  By letter dated June 19, 2019, the superintendent notified petitioner of this determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 22, 2019.

Petitioner asserts that the student qualifies for enrollment in the Justice Academy under the dual enrollment provisions of the Education Law.  Specifically, she asserts that the student is entitled to dual enrollment because his participation in the Justice Academy would qualify as both “[g]ifted education and [o]ccupational education.”  Petitioner further asserts there would be “no cost out of pocket” to respondent if it were to approve the student’s enrollment in the Justice Academy.  Finally, petitioner alleges that respondent’s determination to exclude the student from the program denied him “the opportunity for a better and higher education” and that he has a “civic right to the best education possible.”  Petitioner requests that I order respondent to enroll the student in the Justice Academy “in the fall of 2020.”[3]

Respondent argues that the appeal should be dismissed as untimely and as moot.  Additionally, respondent asserts that petitioner failed to properly verify or file the petition; failed to join all necessary parties; and failed to meet her burden of proving that she is entitled to the relief requested.

First, I must address the procedural issues.  Regarding respondent’s claim that the notice of petition and petition were not properly verified or filed, the record indicates that petitioner initially served respondent with a copy of the petition and notice of petition on July 11, 2019; however, the notice of petition did not include proper notice of petitioner’s request for interim relief, as required by 8 NYCRR §276.1(b).  The following day, petitioner served respondent with a revised set of papers, which, according to respondent, were “identical to the first set except that a notice was included ... to comply with the requirements contained within 8 NYCRR §276.1.”  Petitioner filed the second set of papers with my Office of Counsel on July 17, 2019.  In its answer, respondent avers that “[t]he initial set of papers ... were never filed with the Commissioner ... as required by Education Law §310 or 8 NYCRR §275.9.”  Respondent further states that it “believes that a new [n]otice of [p]etition was prepared and substituted in place of the initial [n]otice of [p]etition with the initial [p]etition and its verification.”  Accordingly, respondent asserts, “the second set of papers” were not “properly verified” because they were “not verified after changes were made from the initial set of appeal papers.”

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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Here, respondent maintains that petitioner’s verification is improper because she verified the petition prior to revising the notice of petition.  Contrary to respondent’s contention, the verification requirement within 8 NYCRR §275.5(a) concerns the “petition” itself, not the notice of petition.  Because the record reflects, and respondent concedes, that the petition was identical in both the first and second set of papers served upon respondent, I do not find that section 275.5 compelled petitioner to execute and serve respondent with a new affidavit of verification when she served a second copy of the petition with a new notice of petition (Appeal of Ad Hoc Committee to Save Kings Elementary School and Jackson, 53 Ed Dept Rep, Decision No. 16,530).  Accordingly, I decline to dismiss the appeal for improper verification.

With respect to respondent’s claim that petitioner did not properly file the petition, section 275.9 of the Commissioner’s regulations provides, in relevant part, that “[w]ithin five days after the service of any pleading or paper ... the original, together with the affidavit of verification and an affidavit proving the service of a copy thereof, shall be transmitted” to my Office of Counsel (see Appeal of Williams, 51 Ed Dept Rep, Decision No. 16,302).  I find that petitioner filed the second set of papers, containing the requisite affidavits of verification and service, with my Office of Counsel on July 17, 2019 – within five days of serving the same upon respondent on July 12, 2019 (8 NYCRR §275.9[a]).  Accordingly, I will not reject the petition on this ground.

Respondent also contends that the appeal must be dismissed as untimely.  Specifically, respondent asserts that, “[a]t the latest, ... petitioner should have filed her appeal within ... 30 ... days of [its] action on April 8, 2019.”  However, petitioner was not aggrieved by the April 8 determination because this resolution indicated that respondent would permit the students to attend the Justice Academy.  If petitioner’s appeal were limited to the issue of financial responsibility for such attendance, respondent’s argument might have merit.  Petitioner, however, seeks a determination permitting her son to “enroll” in the program.  Accordingly, petitioner did not become aggrieved until respondent made a final determination concerning the student’s ability to enroll on June 19, 2019.

Moreover, the record supports a finding that respondent continued to entertain petitioner’s request during May and June 2019.  As indicated above, the parties continued to discuss the matter through at least May 2019; petitioner addressed respondent at its meeting on June 17, 2019; and, by letter dated June 19, 2019, respondent notified petitioner of its final determination.  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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Petitioner commenced the instant appeal on July 12, 2019, which is less than 30 days from respondent’s final determination.  While a request for reconsideration does not ordinarily toll the 30-day time limitation, respondent, in fact, entertained petitioner’s request and issued a new, final decision on June 19, 2019 (see Appeal of Clary, 59 Ed Dept Rep, Decision No. 17,703; Appeal of Skiff, 57 id., Decision No. 17,191).  Under these circumstances, I decline to dismiss the appeal as untimely.

Nevertheless, the appeal must 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).  The record reveals that petitioner sought the student’s enrollment in the Justice Academy for the 2019-2020 school year, his senior year of high school.  That school year has ended.  Therefore, no meaningful relief may be granted at this juncture and the appeal must be dismissed as moot (Appeal of Johnson, 57 Ed Dept Rep, Decision 17,328).

Even if the appeal were not moot, it would 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). 

Here, petitioner seeks a determination that respondent allow the student to attend the Justice Academy as a dually enrolled student.  As evidenced by the discussions that took place between petitioner, respondent, Notre Dame High School, the GV BOCES, and the Monroe 2–Orleans BOCES, an order requiring the student’s enrollment in the Justice Academy might affect entities other than respondent.  Specifically, were I to grant petitioner’s requested relief, the GV BOCES would be required to enroll the student in the program.  Therefore, I find that, at minimum, the GV BOCES is a necessary party.  Because petitioner did not name the GV BOCES in the caption of the appeal or serve it with a copy of the petition, the appeal must be dismissed for failure to join it as a party to this appeal (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,857; Appeal of G.G., 51 Ed Dept Rep, Decision No. 16,331).[4]

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

THE APPEAL IS DISMISSED.

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