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Decision No. 12,811

Application of the AD HOC COMMITTEE GREENBURGH ELEVEN UNION FREE SCHOOL DISTRICT for the removal of Esther Ridder, Louis Lustenberger, John Morgan, Francis Vernon, Sherman Epstein, Stephen Slater, and Mitchell Berken from their positions as members of the Board of Education of the Greenburgh Eleven Union Free School District.

Decision No. 12,811

(September 25, 1992)

Michael H. Sussman, Esq., attorney for petitioner

Plunkett & Jaffe, P.C., attorneys for respondent, Phyllis S. Jaffe, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks to remove each of the above-named respondents from their positions on the Board of Education of the Greenburgh Eleven Union Free School District. The application must be denied.

Petitioner is an unincorporated association of school teachers. In June 1990 the Board of Education of the Greenburgh Union Free School District contracted with the Dormitory Authority of the State of New York for the construction of a new middle school. Pursuant to Chapter 737 of the Laws of 1988, the Dormitory Authority is authorized to construct and finance facilities for special act school districts, such as the Greenburgh Eleven Union Free School District.

After review of the qualifications of several candidates, and after considering a recommendation from the superintendent of schools, respondent on or about September 17, 1990 appointed a construction manager for preconstruction activities. Petitioner alleges that respondent's method of selecting and hiring the construction manager violated Executive Law ''296 and 297 and Article 18 of the General Municipal Law.

Respondent contends that in addition to lacking substantive merit, this appeal is procedurally defective and must be dismissed. In particular, respondent contends that this appeal, commenced at the earliest on or about October 5, 1991, is untimely because it seeks to challenge respondent's activities between July and October 1990. Respondent further alleges that petitioner, as an unincorporated association, lacks standing to bring this appeal under Education Law '310, and further argues that petitioner has not shown that it is aggrieved by respondent's actions.

8 NYCRR '275.16 provides that an appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of. This appeal, instituted in October 1991, is clearly not timely to review actions which took place in the fall of 1990. Section 275.16 authorizes the Commissioner to excuse a failure to commence a timely appeal for good cause shown, but further stipulates that the reason for the failure must be set forth in the petition. Although petitioner alleges in the reply that this appeal should be deemed timely because respondent's allegedly improper activities are of an ongoing nature, the allegation was not set forth in the petition, nor has petitioner described how the alleged improper activities are ongoing. Under these circumstances, the application must be dismissed as untimely (Appeal of Kushner, 31 Ed Dept Rep 351; Appeal of Ruffino, et al., 31 id. 183).

On the issue of standing, an unincorporated association such as petitioner lacks standing to maintain an appeal to the Commissioner of Education (Appeal of NAACP, et al., 30 Ed Dept Rep 187). Although petitioner alleges that standing to maintain an appeal on behalf of students in the respondent district has been recognized in federal litigation, petitioner fails to assert that, as related to this appeal, respondent's actions have caused any harm to students in respondent's school. Therefore, the application must also be dismissed for petitioner's lack of standing (Appeal of Luther H., 30 id. 233; Appeal of Barbara P., et al., 30 id. 198).

I have considered petitioner's remaining contentions and find them without merit.