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Decision No. 14,569

Appeal of STEPHEN E. SCHIAVI from action of the Board of Education of the City School District of the City of Utica and Daniel G. Lowengard, Superintendent, regarding board policies and actions.

Decision No. 14,569

(April 30, 2001)

Donald R. Gerace, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner appeals a series of policies and actions undertaken by the Board of Education of the City School District of the City of Utica ("respondent board") and its superintendent, Daniel G. Lowengard ("respondent superintendent"), in connection with certain district improvements and a collaboration plan with Mohawk Valley Community College ("MVCC") called the "Millenium Project." The appeal must be dismissed.

In July 1999, the district and MVCC, whose campus is adjacent to respondents' Proctor High School ("Proctor"), agreed to collaborate to enhance existing academic partnerships. A series of initiatives called the Millenium Project grew out of these discussions, to share academic programming and facilities between the district and MVCC. One part of the Millenium Project called for restructuring Proctor into four "houses" within the school, to align the high school programs with those offered by MVCC. In November 1999, district voters approved a 37 million dollar school improvement plan, which included the plan to restructure the high school.

Another initiative was to permit certain district high school students to take college courses at MVCC without paying tuition. The district and MVCC sought private and public grants to support this program. Local foundations, the City of Utica and the County of Oneida supplied funds to cover tuition costs. These funds were paid directly to MVCC, and respondents neither received nor paid any money to defray the cost of courses taken by high school students at MVCC.

The district and MVCC also formed an advisory board, to oversee and make recommendations for the Millenium Project. Respondents assert that the advisory board can only recommend funding levels and authorize the expenditure of funds already authorized by respondent board and MVCC. It is not clear whether petitioner asserts that the advisory board has authority to establish funding levels, but there is no evidence in the record to establish such authority.

Petitioner raises a number of challenges to respondents' actions. Petitioner contends that the Millenium Project makes unlawful gifts of public funds by permitting students to attend MVCC tuition-free and by spending $40,000 for an executive director's salary; that respondents have improperly excluded the public from Millenium Project advisory board meetings; and that respondents have violated General Municipal Law ("GML") "103 by purchasing services from MVCC without allowing competitive bids by other entities such as Utica College or the Oneida County BOCES. Petitioner further alleges that respondents are seeking to develop a child care center at Proctor in violation of contingency budget and austerity guidelines; that respondents have failed to reveal the budget for the Millenium Project or acknowledge where the funds are coming from; and that respondents have violated the statutes governing austerity budgets by expending new moneys on programs not approved by district voters, and accepting tax dollars from the county and city for new programs not approved in the budget.

Petitioner additionally alleges that respondents ask 8th grade students to choose a "house" for high school and organize a career path based on an aptitude test administered in the 8th grade, and that this is a possible violation of the students' civil rights; that respondents have acted in collusion with a local newspaper to prevent information from reaching the public; that respondents have violated the Freedom of Information Law ("FOIL") by failing to disclose public documents as requested; and that respondents have violated federal law by using federal special education funds to pay for services provided to regular education students. Petitioner requests that I discipline all district officers who willfully and knowingly violated the Education Law, that I prohibit respondents from entering into partnerships involving the Millenium Project and direct that all public moneys expended to date be returned to the proper authorities, that I declare all contracts identified in the petition to be null and void and that all City of Utica taxpayers will be held harmless in any lawsuits arising from respondents' actions, and that I withhold State aid moneys if respondents violate this order. Petitioner's request for interim relief was denied on February 20, 2001.

Respondents deny petitioner's claims, assert that their actions comply with applicable laws and regulations, and raise a number of procedural objections. Respondents contend that petitioner lacks standing; the petition fails to state a clear and concise claim as required by 8 NYCRR "275.10; the Commissioner lacks jurisdiction to entertain complaints about FOIL or actions by the county and city; and the petition is, in part, premature.

I will first address the procedural objections. Respondents correctly assert that I lack jurisdiction over complaints brought under FOIL. The appropriate forum for addressing alleged FOIL violations is the Supreme Court of the State of New York (Appeal of Christe, 39 Ed Dept Rep 685, Decision No. 14,349; Appeal of Tsu, et al., 39 id. 84, Decision No. 14,181). Although not raised by respondents, I also note that, insofar as petitioner alleges that the public is excluded from Millenium Project advisory board meetings, I lack jurisdiction over alleged violations of the Open Meetings Law. Public Officers Law "107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law to the Supreme Court of the State of New York, and alleged violations of the Open Meetings Law may not be adjudicated in an appeal to the Commissioner (Application of Lilker, 40 Ed Dept Rep ___, Decision No. 14,486; Appeal of Mitchell, et al., 40 id. ___, Decision No. 14,428; Appeal of Instone-Noonan, 39 id. 413, Decision No. 14,275).

Respondents also correctly note that I have no jurisdiction under Education Law "310 to review the actions of the governing authorities of counties or cities. Therefore, to the extent petitioner challenges decisions by Oneida County or the City of Utica to expend funds in support of the Millenium Project or establish tuition policies for MVCC, I am without jurisdiction to review those challenges.

As to standing, an individual may not maintain an appeal pursuant to Education Law "310 unless aggrieved in the sense that he or she has suffered personal damage or injury to her or his civil, personal or property rights (Appeal of Farago, 40 Ed Dept Rep ___, Decision No. 14,450; Appeal of Morris, et al., 38 id. 427, Decision No. 14,066; Appeal of Garwood, 35 id. 297, Decision No. 13,547). Petitioner claims resident taxpayer standing, and I find that petitioner has standing to raise challenges to respondents' use of district funds.

Petitioner lacks standing, however, to assert the rights of students attending respondents' schools. Petitioner does not contend that he has a child who is affected by respondents' policies concerning assignment of students to the various "houses" at Proctor. To the extent petitioner attempts to seek relief on behalf of others, he lacks standing (Appeal of Farago, supra; Appeal of Ogbunugafor, 38 Ed Dept Rep 105, Decision No. 13,994, aff'd, ___ AD2d ___, 718 NYS2d 477 [3d Dept 2001]) and such claim must be dismissed. I note that respondents deny petitioner's characterization of how students are assigned to the "houses" and deny that they administer aptitude tests, but I need not address this issue further in light of petitioner's lack of standing.

I reject respondents' claim that the petition does not comply with "275.10 of the Commissioner's regulations. Although the petition consists mainly of conclusory allegations, the petition provides adequate notice of the claims raised by petitioner and respondents were able to respond and present a defense to these claims. I have consistently held that where, as here, a petitioner is proceeding without representation by counsel, a liberal interpretation of the rules is appropriate, particularly when respondents have presented no evidence of prejudice (Appeal of Cieslik, et al., 40 Ed Dept Rep ___, Decision No. 14,478; Appeal of Smith, 40 id. ___, Decision No. 14,452).

Addressing the merits of the remaining claims, I find that petitioner has failed to sustain his burden of establishing that respondents have engaged in improper actions or that petitioner is entitled to relief. In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Finch, Pruyn & Company, Inc., 40 Ed Dept Rep ___, Decision No. 14,534; Application of Campbell, 40 id. ___, Decision No. 14,515). Petitioner has failed to sustain this burden as to the claims raised in the petition.

The record before me does not support petitioner's conclusory allegations that the school district has provided unlawful gifts of public funds (New York State Constitution Article VIII, "1) to permit students at the high school to take MVCC courses tuition-free. Petitioner has not rebutted respondents' assertion that it has paid no funds to MVCC for such courses, and that any funds used to defray the cost of such courses were provided directly to MVCC by the county, the city and private donors. Petitioner's contention that the district purchased these services from MVCC in violation of GML "103 must similarly fail.

As to the conclusory claims that respondents have violated austerity budget statutes, petitioner presents no proof whatsoever. Respondents explain that the district has spent only $40,000 for Millenium Project programs, and that this expense was in the 2000-01 budget and is part of the contingency budget adopted by respondent board when the voters defeated the recommended budget in May 2000. Respondents assert that they have not exceeded this budgeted amount nor received outside money for programs, and petitioner presents no evidence to rebut these statements. I also reject petitioner's contention that payment of salary for an executive director of the Millenium Project is an unlawful gift of public funds. The Millenium Project is a multi-pronged academic plan and partnership, involving more than just the tuition-free courses at MVCC, and is directly linked to respondent board's public duties under the Education Law to establish and govern the district's educational program.

As to the conclusory complaint about developing a child care center at Proctor, respondents explain that the idea of a child care center is only a recommendation for possible future action by district staff who participated in a planning process. Petitioner has not rebutted respondents’ assertion that, to date, the proposal for a child care center has not been approved by respondent board, and any challenge to such a child care center is thus premature. Similarly, petitioner raises the issue of an agreement between the school district and MVCC to share the use of a new sports stadium, to be built on land transferred to the school district from MVCC and pursuant to the improvement plan approved by the voters in 1999. Petitioner does not explain his specific complaint about this agreement, and I must conclude that any complaint about the stadium is premature because the stadium has not yet been built.

Petitioner presents absolutely no proof to support his contention that respondents have improperly used federal special education funds to provide services to regular education students. To the contrary, respondents assert that the district's use of such federal funds is regularly audited, and that it has passed all audits and has never been cited for any violation of the laws regarding its use of federal funds.

Petitioner's contention that respondents are acting in collusion with a local newspaper, the Observer-Dispatch, to prevent the publication of negative editorials is, in like fashion, unsupported by any evidence. Petitioner provides copies of two letters from the newspaper, declining to print an editorial letter petitioner submitted to the newspaper. There is no evidence that the newspaper was acting out of any motive other than its own editorial policies and standards, and no proof whatsoever that there is any collusion between respondents and the newspaper.