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Decision No. 15,311

Appeal of GEORGE R. HUBBARD from action of the Board of Education of the Greece Central School District and Ruth Ranzenbach, district clerk, regarding a board procedure.

Decision No. 15311

(October 13, 2005)

Harris Beach LLP, attorneys for respondents, James A. Spitz, Jr. and Laura M. Purcell, Esqs., of counsel


MILLS, Commissioner.--Petitioner appeals an internal procedure of the Board of Education of the Greece Central School District ("respondent board" or "board"). The appeal must be dismissed.

Petitioner was sworn into office as a member of respondent board in July 2002. At a special board meeting on November 30, 2004 (from which petitioner was absent), the board president established a three-member Board Correspondence Review Committee ("BCRC") to process correspondence from all board members requesting information, analysis, or items to be placed on the agenda. Paragraph (f) of Board Policy No. 1321 authorizes the board president to define the purpose and structure of committees, and states that there is no formal board action necessary to approve a committee.

Petitioner contends that the BCRC interferes with the timely distribution of correspondence among board members. Petitioner contends that subsequent to November 30, none of his letters were included in the weekly board packet compiled by respondent Ranzenbach for distribution to fellow board members. He asserts that the board president lacked authority to establish the BCRC, that the BCRC was not on the agenda for or in the minutes of the November 30, 2004 special meeting, that respondent board lacked authority to implement a new practice without a public vote and that correspondence from some board members is given preferential treatment for inclusion in the weekly packet over correspondence from others.

Petitioner requests that the Commissioner instruct respondent board to abolish the BCRC, to adopt only those procedures that result in the timely and impartial distribution of correspondence to all board members and officers, and to admonish board officers not to abuse their powers.

Respondents deny any wrongdoing, assert that the petition is untimely, that petitioner fails to state a claim upon which relief can be granted, that the board president had authority pursuant to Board Policy No. 1321 to establish the BCRC, and that correspondence from all board members is processed through the BCRC.

The BCRC chairman avers that the committee was established in part to alleviate the difficulty of having one person responsible for reviewing, understanding and responding to petitioner's repeated requests for information. According to respondents, from the beginning of his term in office on July 1, 2002 through November 22, 2004, petitioner submitted 246 pieces of correspondence and 30 Freedom of Information Law ("FOIL") requests. Petitioner submitted an additional 25 pieces of correspondence and 9 FOIL requests between November 25, 2004 and February 11, 2005, when respondents served their answer. Respondent Ranzenbach, who retired on December 31, 2004, avers that all but seven pieces of correspondence were addressed to the district clerk or the presiding president or vice president of the board and intended for distribution to all board members. The other seven articles were addressed to the entire board. The BCRC chairman avers that approximately 95% of petitioner's 271 pieces of correspondence sought further action such as the provision or analysis of information, placement of items on board agendas, or a response from the board president or other individual.

Preliminarily, I note that respondent Ranzenbach is no longer a district employee and petitioner concedes no wrongdoing on her part. Accordingly, the appeal must be dismissed against her.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). Respondents assert that the appeal is untimely because the board president established the BCRC no later than November 30, 2004 and petitioner served his petition on January 3, 2005, more than 30 days thereafter. However, the affidavit of service attached to the verified petition filed in my Office of Counsel indicates that the petition was served upon board member William H. Russell on December 30, 2004. In their memorandum of law, respondents state that they have no proof of service upon Russell on December 30. However, in the absence of an affidavit from Russell, which respondents did not supply, I must rely on the affidavit of service filed in my Office of Counsel. Accordingly, I will find the petition to be timely.

The appeal must be dismissed, however, for lack of 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 his or her civil, personal or property rights (Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Bermudez, 41 id. 355, Decision No. 14,712). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Polmanteer, 44 Ed Dept Rep 221, Decision No. 15,155; Appeal of Murphy, 39 id. 562, Decision No. 14,311). Petitioner's term of office expired on June 30, 2005 and he did not seek re-election. Inasmuch as the BCRC pertains to intra-board correspondence and petitioner is no longer a member of the board, he has no standing to challenge internal board practices and the appeal must be dismissed.

The appeal must also be dismissed on the merits. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). Petitioner alleges that respondent had no authority to establish the BCRC and its review practice, but fails to provide any basis or proof for his allegation. Thus, I find that petitioner has failed to satisfy his burden of proof.

In light of this disposition, I need not address the parties' remaining contentions.