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Decision No. 14,044

Appeal of DIONE GOLDIN from action of John G. Marmillo, superintendent of the Wappingers Central School District regarding student publications.

Decision No. 14,044

(December 10, 1998)

Michael K. Lambert, attorney for respondent

MILLS, Commissioner.--Petitioner appeals from actions of John G. Marmillo ("respondent"), as superintendent of schools in the Wappingers Central School District, relating to the use of school district funds to publish certain articles in a high school news magazine and a student newspaper. The appeal must be dismissed.

Petitioner is a resident in the Wappingers Central School District. In this appeal she challenges the publication of two articles which appeared prior to the district's 1996 annual election in "The Patriot Press", a news magazine for the district's John Jay High School community, and in "The Tomahawk", the student newspaper of the district's Roy C. Ketcham Senior High School.

In January 1996, "The Tomahawk" published an editorial written by the president of the Wappingers Congress of Teachers opposing certain contracts entered into by the board of education. The April issue of "The Patriot Press" carried a letter from Robert N. Melnyk announcing his candidacy for school board member and setting forth his position on some of the issues the school district was facing. Subsequently, in May, "The Tomahawk" published an interview between its managing editor and candidate Melnyk concerning election issues. Both publications are run by the students with faculty advisors.

Petitioner asserts that, by permitting the publication of the three items, respondent violated district policy which states: "School facilities, staff and school children shall not be used in any manner for advertising, or otherwise promoting any commercial, political or non-school agency, individual or organization in the schools." Petitioner also contends that respondent violated Education Law "414, relating to permissible uses of school district property, as well as Article 8, Section 1 of the New York State Constitution which prohibits the use of public money to aid private individuals or entities. Petitioner also claims that respondent misappropriated money from the school district's general fund to pay the printing and mailing costs of the two publications. Finally, petitioner alleges respondent violated the provisions of the Freedom of Information Law (Public Officers Law, Article 6) and the federal Family Educational Rights and Privacy Act (20 USC "1232g, etseq.). She seeks an order prohibiting respondent from using school facilities and activities for political purposes. She also seeks an order directing respondent to remove all of the faculty advisors for the student newspaper and magazine. Finally, she seeks a determination that respondent failed to enforce all provisions of law and school policy in violation of Education Law "1711(5).

Respondent raises several procedural defenses to the appeal. Respondent asserts that petitioner lacks standing to maintain the appeal, that the appeal is untimely, and that petitioner failed to join necessary parties. Respondent also contends that the appeal is moot. On the merits, respondent asserts that publication of the articles is protected under the First Amendment of the United States Constitution.

I will first address respondent's procedural arguments. Respondent claims that petitioner lacks standing to bring this appeal because she has not alleged any personal injury from the publication of the articles at issue here in the student newspaper and magazine. I disagree. School district residents have standing to challenge allegedly illegal expenditures of school districts (Appeal of Kimball, 36 Ed Dept Rep 508; Appeal of Dumack ver Hunce, 26 id. 340; Matter of Powell, 22 id. 353). In this appeal, petitioner alleges that respondent misused district funds in permitting the publication of improper political material in the student newspaper and magazine. In addition, petitioner asserts that respondent made unauthorized expenditures from the district's general fund rather than from an approved extracurricular activity fund for the costs of printing and mailing the publications. Thus, as a resident challenging alleged illegal expenditures, petitioner has standing to maintain the appeal.

Respondent also contends that the appeal is untimely. An appeal to the Commissioner of Education must be brought within 30 days of the making of the decision or the performance of the act complained of, except for good cause shown. Such cause must be set forth in the petition (8 NYCRR "275.16). Petitioner is challenging three articles published respectively in the January, April and May 1996 editions of the school district's student newspaper and magazine. Petitioner states that the publication of the April 1996 article immediately preceded the April 26, 1996 election. Petitioner did not initiate an appeal challenging the articles until May 28, 1996, more than thirty days after publication of the January and April articles. Petitioner does not set forth in her petition any reason for the delay in appealing the January and April publications. I note that the publications are public information. Although in her reply petitioner claims, in a conclusory fashion, that she filed the appeal within thirty days of the date on which the January and April editions "were made available to her", she does not set forth specific facts as to the dates on which she received the publications or the reason she was unable to obtain the publications earlier. In an appeal to the Commissioner of Education, petitioner has the burden of establishing the facts entitling her to the relief sought (8 NYCRR "275.10; Appeal of Leland, 37 Ed Dept Rep 525; Appeal of Pickreign, 29 id. 163). Here, petitioner has failed to establish that she had good cause for the delay in appealing the January and April publications. Therefore, with respect to those publications, the appeal is untimely and must be dismissed.

Respondent also argues that the appeal must be dismissed because petitioner has failed to join necessary parties to the proceeding. Any party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner must be joined as party to that petition Appeal of Snetzko, 37 Ed Dept Rep 264; Appeal of Catherine B., 37 id. 34; Appeal of Duffy, 36 id. 257). Petitioner requests an order directing respondent to immediately remove the faculty advisors to the school newspaper. Inasmuch as the individual advisors' rights would be affected by a determination in petitioner's favor, they are necessary parties and should have been joined in the petition as such. Petitioner also alleges misuse of school district funds and seeks a determination that money in the school district's general fund has been misappropriated to pay for publication of the student newspaper and magazine as an extracurricular activity, funded through a special proposition. As fiduciary for the Wappingers Central School District's public funds, the Wappingers board of education is responsible for ensuring that all expenditures are legally disbursed. Therefore, a determination that district funds were misappropriated and an order directing that expenditures be made from specific fund accounts would affect the board of education's rights and responsibilities in carrying out its fiduciary duty. Petitioner failed to join the Wappingers board, as well as the individual teacher advisors whose removal she seeks. Consequently, the appeal must be dismissed for petitioner's failure to join necessary parties.

The appeal must also be dismissed as moot. Petitioner seeks an order declaring that respondent was derelict in his duties as superintendent under Education Law "1711. I note that subsequent to the initiation of this appeal and completion of the record before me, respondent retired from his position as superintendent of schools in the Wappingers Central School District. The Commissioner of Education will only decide matters in controversy and will not render a decision upon a state of facts which no longer exists or which subsequent events have laid to rest (Application of Dinan, 36 Ed Dept Rep 370; Appeal of Douglas and Jody H., 36 id. 224). In her prayer for relief, petitioner seeks a determination that respondent failed to carry out his duties and responsibilities pursuant to Education Law "1711(5). Because respondent retired from his position and is no longer employed in the Wappingers Central School District, I cannot grant the relief sought. Therefore, the matter is moot.

Finally, petitioner raises allegations that respondent violated the Freedom of Information Law with respect to certain requests for information that she made. Alleged violations of the Freedom of Information Law must be pursued in a judicial proceeding in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules (Public Officers Law "89; Appeal of Lilker, 37 Ed Dept Rep 529; Appeal of Hendrick, 37 id. 188; Appeal of Kushner, 36 id. 261). Therefore, I am without jurisdiction to decide those claims.

In view of the foregoing disposition, I will not address petitioner's other claims.