Decision No. 13,754

(April 3, 1997)

Ronald H. Sinzheimer, Esq., P.C., attorney for petitioners, Deborah F. Howitt, Esq., of counsel

Shaw & Perelson, LLP, attorneys for respondent, David S. Shaw and Margo L. May, Esqs., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Saugerties Central School District ("respondent") to provide supplemental transportation. The appeal must be dismissed.

Since the 1966-67 school year, respondent has been providing transportation for elementary students who reside within one-half and fifteen miles and secondary students who live within one and one-half and fifteen miles of the school they legally attend. This was the district's policy even though the proposition adopted by the district's voters at the May 3, 1966 annual meeting only approved such supplemental transportation for children in kindergarten through grade six. In March 1996, respondent's superintendent noted this discrepancy and respondent placed Proposition VI before the voters at the 1996 annual district meeting to clarify the district's transportation policy. Proposition VI reads as follows:

On May 8, 1996 district voters approved Proposition VI, but rejected the school budget. Respondent adopted an austerity budget on June 10, 1996. This appeal ensued.

Petitioners allege that the voters' approval of supplemental transportation in Proposition VI became moot when respondent adopted an austerity budget since the funds necessary for such supplemental transportation were not approved by the voters and therefore could not be properly included in the austerity budget. Petitioners further assert that in the years following the adoption of the district's original supplementary transportation policy, each time the voters rejected a proposed budget and the district was forced to operate under an austerity budget, respondent's transportation authority reverted back to the mileage limitations set forth in Education Law '3635. Petitioners seek a determination that respondent improperly adopted previous supplemental transportation provisions and an order requiring respondent to include verifiable appropriation amounts in any future propositions seeking voter approval of supplemental transportation.

Respondent asserts that Education Law '2023, as amended in 1994, specifically provides that school districts under an austerity budget shall continue to transport students in accordance with the mileage limitations previously adopted by the qualified voters of the district. The statute further provides that a district's transportation mileage limits shall only change upon passage of a special proposition by district voters. Respondent therefore contends that the transportation limits adopted by the voters on May 8, 1996 in Proposition VI became the mandatory transportation limits of the district until subsequently altered by the voters. Respondent further contends that since the amendment of Education Law '2023 in 1994, additional voter approval is necessary only for appropriations to provide transportation other than to and from the regular school program. Respondent additionally argues that petitioner Saugerties School Budget Legal Defense Committee lacks standing as an unincorporated association and that the appeal is untimely and moot.

Before reaching the merits, I will address respondent's claim that the Saugerties School Budget Legal Defense Committee lacks standing to bring this appeal. It is well settled that an unincorporated association is not an aggrieved party and therefore lacks standing to bring an appeal pursuant to Education Law '310 (Appeal of Concerned Taxpayers Awareness Group, 35 Ed Dept Rep 448; Appeal of The Plaza School Playground Committee, 35 id. 83; Appeal of the NAACP, et al., 30 id. 187; Appeal of Breithaupt, 26 id. 304). Nor do individual representatives of an unincorporated association have standing to maintain an appeal pursuant to Education Law '310 (Appeal of Cassin, et al., 32 Ed Dept Rep 373). Therefore, petitioner Saugerties School Budget Legal Defense Fund Committee lacks standing to bring this appeal.

However, as part of their reply, petitioners Trumpour, Lindhurst, Nadalin and Bush requested leave to be named as individual petitioners and to amend the petition accordingly. I note that each individual verified the original petition, and each provided an affidavit stating he resides within the district. As such, each has standing to maintain an appeal on his own behalf. Upon review of their application, I find no basis to deny the request for leave to amend the appeal to include the individual petitioners as named parties. Consequently, the request is granted, and the appeal will not be dismissed as to them for lack of standing.

With regard to those claims petitioners raise relating to events that occurred prior to the 1996-97 school year, the appeal must be dismissed as moot. The Commissioner of Education will determine only matters in actual controversy and will not ordinarily render a decision upon a state of facts that no longer exists or which subsequent events have laid to rest (Appeal of Brewer, 35 Ed Dept Rep 196; Appeal of Stopka, 34 id. 157; Appeal of Langenmayr, 30 id. 322). Since petitioners raise claims of improper transportation in the school years prior to 1996-97 and those school years are concluded, the appeal is moot with regard to school years prior to 1996-97.

Respondent also contends that the appeal is untimely. An appeal to the Commissioner of Education must be commenced 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 shown (8 NYCRR 275.16; Appeal of Saba, 36 Ed Dept Rep 233). In this appeal, Proposition VI was approved by the voters on May 8, 1996, respondent approved the austerity budget on June 10, 1996, and this appeal was commenced on July 9, 1996. Petitioners argue that their appeal did not become ripe until respondent's adoption of an austerity budget on June 10, 1996. However, to the extent that petitioners are challenging the validity of Proposition VI, I find that argument unpersuasive. The proposition was approved on May 8, 1996, and the appeal was commenced 62 days later. Petitioners' appeal with respect to the validity of Proposition VI is, therefore, untimely, and the proposition may not be challenged herein. Consequently, that proposition permitted respondent to provide transportation beyond the statutory limits set under Education Law '3635.

To the extent that petitioners challenge respondent's inclusion of funds for supplemental transportation in its austerity budget, Education Law '2023(2), as amended in 1994, provides that:

The clear purpose of the amendment was to permit the continuance of "transportation to and from the regular school program" during an austerity budget. Since respondent's budget was defeated and respondent adopted an austerity budget on June 10, 1996, after Proposition VI was enacted, that transportation may be continued under Education Law '2023 and does not require additional approval by district voters.

In light of the foregoing disposition, I will not address the parties' remaining claims.

THE APPEAL IS DISMISSED.

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