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Decision No. 13,019

Appeal of DONALD L. KELLOGG, SR., from action of the Board of Cooperative Educational Services of Cattaraugus, Allegany, Erie and Wyoming Counties relating to a contract for video production.

Decision No. 13,019

(October 6, 1993)

Hodgson, Russ, Andrews, Woods and Goodyear, Esqs., attorneys for respondent, Karl W. Kristoff, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges the legality of a contract between respondent Board of Cooperative Educational Services of Cattaraugus, Allegany, Erie and Wyoming Counties ("BOCES") and Warner Cable, Inc. ("Warner"). Petitioner requests that I declare the contract null and void and enjoin BOCES from entering into similar contracts. The appeal must be dismissed.

Effective August 1, 1991, BOCES and Warner entered into a five-year contract by which BOCES was to operate and administer the cable television public access channel for Warner's Olean Cable Television System. BOCES was obligated to produce local programming consisting of a news show, government meetings, sports, other programs of local interest and educational programming to be cable cast over the channel. Warner agreed to pay BOCES $31,000 in capital costs to be incurred by BOCES and approximately $40,000 per year during the term of the contract for operating expenses. Petitioner commenced this appeal on or about February 16, 1993 seeking to annul the contract.

Petitioner is apparently involved in a private business which develops local television programming. Petitioner contends that the contract at issue is illegal because BOCES is limited to entering into contracts with other public entities for shared services, reproduction of educational television materials and programs and other activities related to these functions. Petitioner alleges the contract improperly interferes with the rights and abilities of private enterprise to engage in such contracts.

BOCES contends that petitioner's claim has no legal merit and also alleges that this appeal, commenced in February 1993, is not timely to review the propriety of a contract which was entered into in August 1991.

The appeal must be dismissed on several procedural grounds. First, the appeal is untimely. An appeal to the Commissioner pursuant to Education Law '310 must be brought within thirty days of the act challenged. Petitioner alleges that he has attempted to negotiate with BOCES to share the contract responsibilities and revenues, but his attempts were rejected. BOCES denies these allegations, and contends that such negotiations do not constitute good cause for petitioner's failure to commence the appeal within thirty days as required by 8NYCRR '275.16. Time to initiate an appeal to the Commissioner is determined by the date the alleged misconduct occurred, in this case the execution of the contract, which occurred in August 1991. I must, therefore, conclude that this appeal instituted in February 1993 is untimely and must be dismissed (Appeal of Golden, 32 id. 202).

Moreover, petitioner lacks standing to bring this appeal. To commence an appeal to the Commissioner, the party seeking relief must be able to demonstrate that they have suffered some personal damage or injury to their rights (Matter of Hassid, 24 Ed Dept Rep 281; Matter of Eaton, 24 id. 88). Although petitioner generally alleges that his financial base has been weakened by virtue of this contract and that the contract is hampering the growth of private sector business, there is nothing in the record which supports this allegation. I, therefore, must conclude that petitioner has failed to demonstrate the standing necessary to maintain this appeal (Appeal of Capozza, 25 Ed Dept Rep 15; Appeal of Reid, 25 id. 71).

Moreover, I note that the relief sought by petitioner would necessarily impair the rights of Warner as a party to the contract. Petitioner's failure to join Warner as a party respondent in this appeal also necessitates dismissal of the appeal (Matter of Weiss, 19 Ed Dept Rep 308).

Since I find that this appeal is procedurally deficient, I will not render a decision on the merits.