Decision No. 13,690

(October 17, 1996)

MILLS, Commissioner.--Petitioner, a group of residents of the Abraham Wing Common School District, appeals respondents' decision to maintain the sixth grade in the district for the 1996-97 school year and challenges a resolution of respondent board authorizing borrowing. The appeal must be dismissed.

On April 15, 1996, respondent board presented a plan to district residents to educate sixth grade students at the Abraham Wing Elementary School during the 1996-97 school year, rather than tuitioning-out such students to the Glens Falls Middle School, as had been done since 1987. On July 19, 1996, a petition was presented to the board of trustees requesting a referendum on the question. Respondents denied the request on June 29, 1996 and, on July 2, 1996, adopted a contingency budget which included expenditures for an in-district sixth grade. This appeal ensued.

Petitioner contends that the sixth grade students will suffer academically and socially, and questions whether the related expenditures are ordinary contingent expenses. It also challenges respondent board's June 28, 1996 motion to borrow $50,000 without voter approval. Petitioner seeks an order requiring respondents to place the question of the sixth grade location on a separate referendum to allow the voters to decide the issue. It also seeks review of the contingency budget and of an alleged $50,000 appropriation. I denied petitioner's request for interim relief pending a determination on the merits on August 8, 1996.

Respondents argue that petitioner fails to demonstrate that it is entitled to the relief requested. They maintain that the decision to educate sixth grade students within the district lies with the board of trustees and not with the voters, that the costs associated with running the sixth grade program in-district are ordinary contingent expenses, and that the board's June 28, 1996 authorization of a $50,000 tax anticipation note does not require voter approval.

As a threshold matter, although not raised by respondent, this appeal must be dismissed for lack of standing to bring an appeal before the Commissioner of Education. This appeal was brought by the Concerned Parents and Taxpayers of Abraham Wing Common School District, a group which the petition asserts consists of residents, including taxpayers and parents of children in grades kindergarten through grade five at the Abraham Wing Common School District. The petition was verified by two individuals who identified themselves as members of that group. However, there is no indication that this committee is incorporated, nor is there any evidence that the persons verifying the petition are in any manner personally affected by respondents' actions. An unincorporated association, such as this group, lacks standing to maintain an appeal to the Commissioner (Appeal of Concerned Taxpayers Awareness Group, 35 Ed Dept Rep 448; Appeal of The Plaza School Playground Committee, 35 id. 83; Appeal of PS 7/IS 171 Environmental Improvement Committee, 34 id. 297). In addition, an individual representative of an unincorporated association does not have standing to maintain an appeal pursuant to Education Law '310 (Appeal of Concerned Taxpayers Awareness Group, supra; Appeal of The Plaza School Playground Committee, supra; Appeal of Mezzapelle, 33 Ed Dept Rep 490). Therefore, the appeal must be dismissed for lack of standing.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Petitioner requests a referendum to allow the voters to decide whether the district's sixth grade students should be educated in the district or tuitioned-out to another district. Although Education Law '2040 requires voter approval of a school district's decision to contract-out for educational services, there is no corresponding requirement that district voters approve a board of trustees' decision to conclude such arrangements by providing such educational services directly with the district. In the absence of any such specific requirement, Education Law '1604 vests control of the educational affairs of a common school district in the board of trustees.

Petitioner also questions whether the costs involved in running the sixth grade (i.e., the salary of an additional teacher and the cost of desks, books, and materials) are ordinary contingent expenses. The responsibility for determining what constitutes an ordinary contingent expense lies in the first instance with the board of education (Appeal of Nolan, 35 Ed Dept Rep 139). However, under Education Law '2024, any question concerning a board's determination of such an expense may be referred to the Commissioner of Education for determination. An expense may be considered contingent if it is a legal obligation of the district or if it is necessary to maintain the educational program, preserve property or assure the health and safety of the students and staff (Formal Opinion of Counsel No. 213, 7 Ed Dept Rep 153). Given the authority of a board of trustees to determine the nature of the educational offerings and, in this case, to offer the sixth grade program within the district, the costs of such program constitute ordinary contingent expenses (see, Appeal of Feller, 28 Ed Dept Rep 321, holding that it is within the bounds of the board's discretion to offer a full-day kindergarten program, the cost of which is an ordinary contingent expenses).

Finally, petitioner challenges respondent board's June 28, 1996 decision to borrow $50,000 without voter approval. Respondents maintain that the borrowing was in the form of a tax anticipation note which does not require voter approval. Section 275.10 of the Commissioner's regulations requires that a "petition contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief." That is, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Nash, 35 Ed Dept Rep 203; Appeal of Goldman, 35 id. 126) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Nash, supra; Appeal of DiMicelli, 28 Ed Dept Rep 327). Petitioner has not provided any evidence that it has a legal right to relief arising from respondents' actions.

THE APPEAL IS DISMISSED.

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