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Decision No. 13,155

Appeal of CHARLOTTE L. EVANS from action of Paul R. Doyle, Superintendent, Daniel P. Hendricks, Assistant Superintendent for Business, Marilyn H. Plume, Principal, Kenneth F. Harris, President of the Board of Education of the Fairport Central School District, James J. Coone, Vice President, Robert M. Hamel, Phillip A. Knauf, Lawrence T. Lovejoy, Patricia F. May and John Tiberio, as members of the Board, relating to alleged improper expenditures of student activity funds.

Decision No. 13,155

(April 18, 1994)

Harris, Beach & Wilcox, Esqs., attorneys for respondents, Alfred L. Streppa, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks the removal of Paul R. Doyle as Superintendent of the Fairport Central School District for alleged improper expenditures of student activity funds. Petitioner also challenges the district's practice of charging parents for field trips, allowing students' artwork to be sold and the alleged commencement of an unapproved capital project. The appeal must be dismissed.

During the 1990-91 school year, the teachers at the Northside School in the Fairport school district created a committee of teachers and parents to consider converting an existing school courtyard into a "science center" as a curriculum-related project. Teachers, parents and students raised $9,000, which was deposited into an extracurricular activity account. Of those funds, $350 was used to pay for a landscape design for the proposed science courtyard project. No other monies were spent and no capital improvement was undertaken or approved by the Fairport Board of Education.

During the 1990-91 and 1991-92 school years, fifth grade students at the Northside School went on over-night field trips sponsored by the PTA. Parents of students attending those trips were charged between $90-145 per trip. Commencing with the 1993-94 school year, all field trips are paid in full through the school district budget.

On November 3, 1993, as part of a fund-raising effort to support the proposed science courtyard project, parents were sent flyers soliciting purchase orders for a variety of items bearing reproductions of student artwork. On November 10, 1993, the principal of the elementary school sent a letter to parents informing them that the sale of these items would continue on a not-for-profit basis and that parents would receive refunds of profits on any items already ordered. This appeal followed.

Petitioner seeks the superintendent's removal for willful violation of law. Petitioner also requests that I direct that all field trips be paid for through the school district budget, that I prohibit the expenditure of funds for the proposed science courtyard and prohibit the school district from using reproductions of students' artwork for fund-raising purposes. Respondent seeks to have the appeal dismissed for improper service, untimeliness, mootness and because respondent superintendent did not engage in any willful violation of law.

Respondents correctly allege that the board of education has not been named as a party in this appeal. In addition, none of the individual respondents were personally served. Section 275.8(a) of the Commissioner's Regulations requires that each named respondent be personally served with a copy of the petition. That regulation further provides that if a school district is named as a party then such service may be made by personally delivering a copy of the petition to the district clerk (8 NYCRR 275.8(a)). The record reflects that while service of the notice of petition and petition was made on the district clerk, the school district was not named as a party. Because petitioner's service on the district clerk in this case did not perfect personal jurisdiction over any of the individual respondents, the appeal must be dismissed (Appeal of Gonzalez, 28 Ed Dept Rep 231).

With respect to the timeliness of this appeal, an appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause (8 NYCRR 275.16). This appeal was commenced on December 6, 1993. Except for the sale of items bearing reproductions of student artwork in November 1993, petitioner complains about acts which occurred in 1990, 1991 and 1992. Petitioner claims her appeal is timely because it was filed within thirty days of receipt of a November 10, 1993 letter from the Fairport board. Petitioner asserts this letter was a response to her request for reconsideration of the board's field trip policy of previous school years. In essence, petitioner's request which prompted the November 10, 1993 letter was a request for reconsideration of the board's policy. A request for reconsideration of a decision does not extend the time in which to bring an appeal (Appeal of Chrisfield, 33 Ed Dept Rep 463, Appeal of Defense, 24 id. 198). Therefore, except for the issue involving the alleged sale of student artwork, the appeal must be dismissed as untimely.

With respect to the issue of mootness, the Commissioner of Education will decide only cases where an actual controversy exists and will not render a decision concerning a dispute which subsequent events have laid to rest (Appeal of Chrisfield, supra; Appeal of Hartmann, 32 Ed Dept Rep 640). On November 10, 1993, the Fairport Board ordered that reproductions of students' artwork not be sold for profit and that all field trips commencing with the 1993-94 school year be entirely funded through the school district budget. Therefore, there is no present controversy, and the appeal must be dismissed as moot.

Regarding petitioner's claim of improper expenditures of funds for the proposed science courtyard, the record reflects that no capital improvements have occurred in connection with that project. In essence, petitioner is seeking a declaratory ruling or advisory opinion that such expenditures, if made in the future, would be improper. However, the Commissioner of Education does not issue declaratory rulings in appeals brought pursuant to Education Law "310 (Application of Marshall, et al., 33 Ed Dept Rep 26; Appeal of Heizman, 31 id. 387).

The application for removal of Superintendent Doyle must be dismissed on the merits. Section 277.1 of the Commissioner's Regulations requires that an application seeking removal of a school officer set forth

the willful violation of law, neglect of duty, or willful disobedience of a decision, order or regulation of the commissioner charged against the officer and the facts by which it is established; . . . [which] must be set forth with such certainty as to time, place and all other pertinent details, as to furnish the officer with precise information as to what he is expected to meet; . . .

Education Law "306 authorizes the Commissioner of Education to remove a superintendent for willful violation or neglect of duty under the law (Education Law "306(1); Application of Marshall, supra; Application of Steenrod, 32 Ed Dept Rep 490). In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Application of Marshall, supra; Appeal of Garnett, 32 Ed Dept Rep 91). Petitioner has failed to provide any facts which establish that the superintendent engaged in any willful violation of law or neglect of duty. Without facts to support the conclusory allegation of willful violation of law, the application must be denied.