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Decision No. 14,471

Appeal of GLENDA P. PHILLIPS from action of the Board of Education of the Wyandanch Union Free School District regarding board practices.

Decision No. 14,471

(October 2, 2000)

Van Nostrand & Martin, attorneys for respondent, David S. Desmond, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges various actions of the Board of Education of the Wyandanch Union Free School District ("respondent"), alleging that respondent has abused its power, failed to properly educate district students and mishandled district finances. The appeal must be dismissed.

Petitioner’s son is a student in respondent’s schools. Petitioner also claims to represent "the Minority, of Individuals, of Absentees, and Rights of ALL of these together." In her very brief petition, petitioner states that respondent is guilty of "abuse of power, educational abuse of students and financial abuse of (the) community." She provides no narrative explaining these alleged abuses. Instead, petitioner submits as exhibits a number of audio tapes of respondent’s meetings. She claims that the audio tapes provide evidence of the alleged abuses and asks me to order respondent to "stop these practices", to remove the board or certain unspecified members and "return appropriate education." Petitioner also provides a copy of her May 10, 1999 letter to respondent requesting a hearing concerning an allegation that her son smoked marijuana. She identifies the exhibit as evidence of harassment of her son.

Respondent asserts that the appeal must be dismissed because the petition is not verified, is untimely and fails to contain a clear and concise statement of a claim upon which relief can be granted. Respondent also argues that petitioner lacks standing to bring the appeal as a representative of a class and that she failed to name necessary parties.

The appeal must be dismissed on several procedural grounds. Section 275.5 of the Regulations of the Commissioner of Education requires that all pleadings in an appeal before the Commissioner be verified. Section 275.6 sets forth the form of verification to be attached to the petition. The petition herein is not verified. Although petitioner's signature is notarized, merely notarizing a signature does not constitute verification of a pleading (Appeal of Shabazz, 38 Ed Dept Rep 481, Decision No. 14,076). When a petition is not properly verified, the appeal must be dismissed (Appeal of Spensieri, 40 Ed Dept Rep __, Decision No. 14,419; Appeal of Davis, 39 id. 181, Decision No. 14,207; Appeal of Shabazz, supra).

Most of petitioner’s claims are untimely. An appeal to the Commissioner 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 shown in the petition (8 NYCRR "275.16; Appeal ofKarpen, 40 Ed Dept Rep __, Decision No. 14,417). The petition is dated May 20, 1999. Thus, to the extent that petitioner seeks to challenge actions taken more than thirty days before that date, her claims must be dismissed as untimely. This includes petitioner’s challenge to respondent’s actions taken at the board meetings recorded on audio tapes submitted by petitioner, which took place between March 4, 1997 and March 17, 1999. Petitioner’s claim regarding the alleged harassment of her son by district officials appears to be timely.

Moreover, petitioner may not bring this appeal as a class representative. An appeal may only be maintained on behalf of a class "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 of the class" (8 NYCRR "275.2; Appeal of Wayne, 39 Ed Dept Rep 518, Decision No. 14,298; Appeal of Prentice, 38 id. 736, Decision No. 14,130; Appeal of Astafan, 36 id. 463, Decision No. 13,776). Petitioner must set forth the number of individuals she seeks to represent (Appeal of Wayne, supra; Appeal of Prentice, supra) and show that all questions of law and fact would be common to all members of the class (Appeal of Prentice, supra; Appeal of Astafan, supra). Petitioner has not made this showing. In fact, the petition does not address the requisite standard at all. Therefore, class status is denied.

Petitioner also failed to name any individual board members as respondents or to serve the petition upon them. Because the petitioner seeks removal of board members they are necessary parties. Failure to join them means the appeal must be dismissed (Appeal of Simons, 39 Ed Dept Rep __, Decision No. 14,367; Appeal of Looman, 39 id. 370, Decision No. 14,262).

The appeal must also be dismissed on the merits. In an appeal to the Commissioner, petitioner bears the burden of establishing all the facts upon which he or she seeks relief (8 NYCRR "275.10; Appeal of Alexander, 39 Ed Dept Rep 265, Decision No. 14,232; Appeal of Trombley, 39 id. 115, Decision No. 14,189) and demonstrating a clear legal right to the relief requested (Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120).

Petitioner has failed to meet this burden. With respect to her claim that her son was harassed by district officials, the record reveals only that he was questioned about smoking and that his mother’s explanation that he was not smoking was accepted. No consequences followed. Petitioner has failed to set forth any basis for granting relief with respect to this claim. With regard to her claims that respondent acted improperly, the petition does not describe any particular action that was improper or set forth any coherent legal theory that would justify granting petitioner relief. Petitioner simply makes conclusory allegations that the exhibits to the petition show that respondent engaged in nepotism, personal vendettas and financial abuses. She fails to identify the instances in which this allegedly occurred or to provide specific evidence of particular acts of wrongdoing. In essence, petitioner provides a series of tape recordings of respondent’s meetings and asks me to investigate any potential wrongdoing.

An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Van Zile and Crowell, 37 Ed Dept Rep 213, Decision No. 13,846). Accordingly, the petition must be dismissed.