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Decision No. 14,269

Appeal of ROSE M. FLORAMO from action of the Board of Education of the Dunkirk Central School District relating to an attendance policy.

Decision No. 14,269

(December 21, 1999)

Hodgson, Russ, Andrews, Woods and Goodyear, LLP, attorneys for respondent, David A. Farmelo, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges a summer school attendance policy adopted by the Board of Education of the Dunkirk Central School District ("respondent"). The appeal must be dismissed.

Petitioner is a member of respondent board of education. She brings this appeal on behalf of all students who attended respondent's 1996-97 summer school program. In 1991, respondent adopted a summer school attendance policy which provided, in part, that after three absences in a course, a student would be dropped from that course. The policy also provided, "Failure to be present at the start of the class constitutes an absence." The policy was implemented during each of respondent's subsequent summer school programs. On May 13, 1997, in response to complaints that the policy was too harsh, respondent rescinded the summer school attendance policy. Instead, respondent adopted a policy encouraging punctuality and daily attendance in summer school. As a result, during the 1997 summer school session, the district experienced substantial attendance problems. Therefore, on July 8, 1997, respondent reinstated its previous attendance policy. However, on advice of counsel, respondent refrained from immediately implementing the July 8, 1997 policy, as the 1997 summer school program had already commenced. Respondent began working on a new policy for subsequent summer sessions.

Petitioner challenges the propriety of the summer school attendance policy that respondent reinstated on July 8, 1997. She seeks an order nullifying respondent's action, directing respondent to develop a "fair and workable" summer school attendance policy that does not treat tardiness as an absence or penalize a student for only three absences, and directing that all costs of this appeal be assessed against board member John Murphy as a proponent of the challenged attendance policy.

Respondent asserts that petitioner lacks standing to maintain the appeal and that, to the extent petitioner seeks to maintain a class appeal on behalf of all students, she failed to establish class status. Respondent further claims the appeal is untimely, the matter is moot and that petitioner failed to join John Murphy as a respondent in the appeal. Finally, respondent asserts that the summer school attendance policy reinstated in 1997 was valid while in effect for its summer school programs.

I will first address respondent's procedural defenses. Pursuant to Education Law "310, an individual may not maintain an appeal unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Lucente, 39 Ed Dept Rep ___, Decision No. 14,227; Appeal of Morris, et al., 38 id. 427, Decision No. 14,066). Petitioner challenges respondent's summer school attendance policy "on behalf of all students." Petitioner does not indicate that she has a child attending school in respondent's district nor does she assert any personal injury caused by the challenged policy. Because petitioner has failed to submit evidence demonstrating that she is a student or the parent or guardian of a student aggrieved by the attendance policy, she lacks standing to maintain the appeal.

To the extent petitioner seeks to maintain this appeal as representative of a class, she fails to establish the criteria required for approval of class status. Pursuant to 8 NYCRR "275.2, a class appeal may only be maintained where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members (Appeal of Aloisio, 38 Ed Dept Rep 169; Decision No. 14,009).

Petitioner must set forth the number of individuals she seeks to represent (Appeal of Aloisio, supra; Appeal of Sperl, 33 Ed Dept Rep 388; Decision No. 13,088), and must show that all questions of law and fact would be common to all members of the class (Appeal of Donnelly, 33 Ed Dept Rep 362, Decision No. 13,079). The petition herein sets forth no information regarding the number of members of the proposed class nor does she indicate whether common questions of fact exist. Thus, petitioner has failed to establish criteria on which to obtain class status. Therefore, to the extent she seeks to maintain this proceeding as a class appeal, such request is denied.

Respondent also is correct in its assertion that the matter is moot. The Commissioner of Education will only decide matters in actual controversy and will not render a determination on a set of facts which no longer exist or which subsequent events have laid to rest (Appeal of Wright, 38 Ed Dept Rep 756; Decision No. 14,134; Appeal of Leslie, 38 id. 194; Decision No. 14,013).

Petitioner challenges the summer school attendance policy respondent adopted on July 8, 1997 for implementation during its 1997 summer school program. She seeks "protection" for students attending the 1997 summer school session. Respondent's 1997 summer school program commenced July 1 and ended August 18. Petitioner did not serve her petition until July 31. All required pleadings and memoranda were not submitted in the appeal until October 17, 1997, subsequent to the end of the summer school program at issue. Moreover, respondents indicate that, in accordance with a recommendation in a July 23, 1997 memorandum from its superintendent, the challenged summer school attendance policy was never implemented, and no student was affected by it during the 1997 summer program. Therefore, to the extent petitioner challenges application of the July 8 attendance policy to respondent's 1997 summer school program, the matter is moot.

Petitioner also seeks an order directing respondent to develop a new summer school attendance policy. The record indicates that respondent already commenced the development of a new policy. Therefore, there is no further meaningful relief to be afforded and the matter is also moot on that basis.

Finally, petitioner seeks a determination that board member John Murphy made inappropriate comments during board meetings and that his support for provisions of the challenged summer school attendance policy contributed to the necessity of this appeal and its attendant costs to the district. She asks that Mr. Murphy be directed to pay all costs of the appeal, instead of requiring such payment by the school district. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Houghton, 38 Ed Dept Rep 777, Decision No. 14,141; Appeal of Karliner, 36 id. 30, Decision No. 13,644). Because Mr. Murphy's rights would be affected should petitioner obtain the relief she seeks, he is a necessary party to the appeal. Petitioner's failure to join Mr. Murphy as a respondent requires dismissal of the appeal as against him. Likewise, it is well settled that the Commissioner of Education lacks authority to award damages, costs or attorneys fees (Appeal of Jenkins, 36 Ed Dept Rep 497, Decision No. 13,784; Appeal of Shravah, 36 id. 396, Decision No. 13,760; Appeal of Reynolds, 35 id. 327, Decision No. 13,559).

In view of the above disposition of the appeal, I need not address the parties' other claims.