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Decision No. 15,030

Appeal of JOSEPH P. GIARDINA from action of the Board of Education of the Bedford Central School District regarding trip expenditures.


Appeal of MICHELANGELO CARBONE from action of the Board of Education of the Bedford Central School District regarding trip expenditures.



(February 26, 2004)


Ingerman Smith, LLP, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

 MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Bedford Central School District ("respondent") to authorize an expenditure of up to $15,000 toward the cost of a field trip to Costa Rica.  Because the appeals relate to the same trip and raise similar issues, they have been consolidated for decision.  The appeals must be dismissed.

Respondent administers the Academic Community for Educational Success ("ACES"), an alternative high school program designed to benefit students who are not successful in regular education programs.  ACES employs experiential learning techniques and counseling to address issues that are a barrier to learning.  Adventure-based trips are scheduled each year as part of the program. On December 3, 2002, the co-director of the ACES program submitted a proposal to respondent"s superintendent for a student trip to Costa Rica from February 27 through March 6, 2003. 

The proposal contained a description of the educational components of the trip and information on how the trip would be funded.  It stated that the academic objectives of the trip included studying biology and bio-diversity, global studies, geography and economics and described a variety of student assignments connected to those subjects.  The proposal provided that students would be responsible for their own travel costs, meals and accommodations and that the district would pay for all educational activities and expenses for four chaperones.  The proposal stated that fundraising activities would be held to provide financial aid to students who might otherwise be unable to afford the trip.  Students who chose not to go would be taught a parallel curriculum at the regular district location to receive the same academic credit as those who participated in the field trip.

At its December 4, 2002 meeting, the superintendent informed respondent about the trip proposal and placed it on respondent"s December 18, 2002 agenda.  At that meeting, respondent apparently approved the field trip request.  At its January 15, 2003 meeting, respondent adopted a resolution stating that the trip was an integral part of the ACES curriculum for which students would receive academic credit, noting that the trip objectives were aligned with State curriculum standards and appropriating an amount not to exceed $15,000 to defray the cost of the educational component of the trip, including the cost of chaperones. 

Petitioner Carbone ("Carbone") commenced an appeal on January 29, 2003, and his request for interim relief was denied on February 12, 2003.  Petitioner Giardina ("Giardina") commenced an appeal on February 13, 2003 and his request for interim relief was denied on February 24, 2003. 

Carbone contends that, since the field trip is an integral part of the ACES curriculum and was specifically approved by respondent as part of the educational program of the school, respondent is obligated to pay the entire cost of the trip.  Carbone objects to fundraising to pay for educational programs and argues that use of those funds to subsidize student expenses is an illegal gift of public funds.  Carbone also argues that any special education student whose Individualized Education Program ("IEP") requires participation in the trip may not be required to pay for the trip.  Carbone asks that I order respondent to reimburse students for the cost of the trip and provide tuition-free education.  He also asks that I establish reasonable guidelines for field trips, excursions and legitimate fundraising. 

Among other things, Giardina alleges that respondent improperly used taxpayer money to fund "[u]nlimited, extravagant and voluntary travel of students and teachers."  He also argues that any money raised by ACES is public money and that its use to subsidize student expenses is an unconstitutional distribution of public money to private individuals.  Giardina asks that I order respondent to stop using public funds for private purposes, to cease all travel beyond the metropolitan area until the threat of terrorism subsides, to stop fundraising for the trip and to stop using experiential learning techniques.  Giardina also requests that I establish reasonable guidelines for field trips and excursions.

Respondent contends that petitioners lack standing, have failed to state claims that justify the relief requested and have failed to meet their burden of proof.  Respondent asserts that it properly approved payment for the educational component of the field trip.

Initially, I must address the procedural issues.  Respondent contends that both petitioners lack 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 Allard, 43 Ed Dept Rep __, Decision No. 14,957; Appeal of Tyk, 42 id. 15, Decision No. 14,759; Appeal of Farago, 40 id. 168, Decision No. 14,450, judgment granted dismissing petition to review, Sup. Ct. Albany Co., [McNamara, J.], May 1, 2001; n.o.r.). 

The record reflects that both petitioners are district residents and taxpayers.  District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Allard, supra; Appeal of Gargan, 40 Ed Dept Rep 465, Decision No. 14,528).  Giardina clearly makes such a challenge.  Therefore, I find that Giardina has standing.  To the extent that he challenges the distribution of money from fundraising activities as an illegal distribution of public funds, I find that Carbone also has standing. 

Petitioner Carbone, however, further challenges respondent"s decision not to spend public funds.  He fails to articulate how respondent"s failure to pay all trip expenses has harmed him. Only persons who are directly affected by the action being appealed have standing (Appeal of Edwards, 42 Ed Dept Rep __, Decision No. 14,885; Appeal of Simms, 42 id. 50, Decision No. 14,773; Appeal of Allen and Wong, 40 id. 372, Decision No. 14,501).  Carbone also lacks standing to assert the rights of others, including students who were required to pay for the trip and special education students (Appeal of Gilmore, et al., 42 Ed Dept Rep __, Decision No. 14,874; Appeal of Meyer and Mittelstaedt, 40 id. 34, Decision No. 14,413; Appeal of Schuler, 37 id. 512, Decision No. 13,915).  Therefore, to the extent Carbone asserts that respondent should have paid all student expenses for the trip, his appeal is dismissed for lack of standing.

Giardina submitted a reply that contains new allegations and evidence, including affidavits, which should have been included with his petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Goldin, 43 Ed Dept Rep __, Decision No. 14,904; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  While I have reviewed Giardina's reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Carbone belatedly submitted a memorandum of law with an affidavit.  Respondent argues that the memorandum should not be considered because it was submitted six months late and Carbone does not provide sufficient explanation for the extreme lateness.  While the Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR "276.4[a]), Carbone has shown neither in this appeal.  Furthermore, a memorandum of law may not be used to add new assertions or exhibits belatedly that are not part of the record (Appeal of Smolen, 43 Ed Dept Rep __, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540; Appeal of Adriatico, 39 id. 248, Decision No. 14,228).  Carbone"s memorandum makes new allegations and includes an affidavit that should have been submitted with his petition. Therefore, I have not considered Carbone"s memorandum of law.

The appeals must be dismissed on the merits. In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of General, 43 Ed Dept Rep __, Decision No. 14,948).  Article VIII, "1 of the State Constitution prohibits school districts from making gifts or loans of money or property to or in aid of any individual, or private corporation, association or undertaking.  Giardina and Carbone contend that money raised by various fundraising activities are public monies.  They assert that using those funds to subsidize students" field trip expenses is an illegal gift of those funds.  However, petitioners base this argument on vague allegations, submitted without evidentiary support, that district personnel and resources are being used to fundraise.  Moreover, petitioners cite no legal support for their contention that the fundraised monies are public funds.  Thus, petitioners have not met their burden to establish that respondent illegally disbursed public monies.

Public school districts have authority to include field trips as part of the district's educational curriculum (see, Education Law ""1709[3] and [33], 1804 and 2023[1]; Cook v. Griffin, 47 AD2d 23, 28; Appeal of Christe, 39 Ed Dept Rep 685, Decision No. 14,349).  In Appeal of Christe, supra, the Commissioner articulated criteria to determine whether a particular trip should be considered a private activity or part of the educational program.  They include whether the trip is an approved part of the educational program of the school, occurs during the regular school day and year, is recognized as appropriate for academic credit and is open to all students. 

The trip in the instant appeals meets these criteria.  The trip was scheduled during school session, resulted in academic credit, provided for parallel instruction for students unable to participate, and was subject to the ACES disciplinary code.  Therefore, based on the record before me, it appears that respondent acted within its authority when it approved the school-sponsored field trip and properly appropriated funds for the educational component of the trip.

Finally, Giardina asserts that respondent improperly used public moneys to pay for the chaperones.  Article VIII, section 1 of the New York State Constitution prohibits a gift of public funds to an individual.  This section generally prohibits the expenditure of school district moneys for the benefit of private parties unless it is in furtherance of a proper public purpose and is undertaken pursuant to a statutory obligation or properly authorized contract under which the municipality receives fair and adequate consideration (see, Antonopoulou v. Beame, 32 NY2d 126; 1989 Opn. State Compt. No. 89-50).  However, where the expenditure primarily furthers a proper public purpose and only incidentally benefits an individual, the incidental private benefit will not invalidate the action (Waldo"s v. Village of Johnson City, 74 NY2d 718; Murphy v. Erie County, 28 id. 80; Opn. State Compt. No. 92-5).  Here, the record indicates that the chaperones were teachers from the ACES program who provided the educational component for the trip.  Therefore, any incidental benefit to the chaperones does not negate the public purpose of providing the educational program approved by respondent.

I have examined petitioners" remaining contentions and find them without merit.



IN WITNESS WHEREOF, I, Richard P. Mills, Commissioner of Education of the State of New York for and on behalf of the State Education Department, do hereunto set my hand and affix the seal of the State Education Department, at the City of Albany, this      day of February, 2004.


Commissioner of Education