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Decision No. 15,316

Appeal of GEORGE R. HUBBARD from action of the Board of Education of the Greece Central School District regarding a board policy.

Decision No. 15,316

(October 24, 2005)

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


MILLS, Commissioner.--Petitioner challenges a policy of the Board of Education of the Greece Central School District ("respondent" or "board") regarding confidential information. The appeal must be dismissed.

Petitioner is a resident and taxpayer in respondent's district. At the time of the commencement of this appeal, petitioner was also a member of the board.

In February 2005, petitioner proposed an agenda item for the board's March 8 meeting, for the purpose of revising board policy 1730 entitled "Executive Sessions." At that time, policy 1730 stated, in pertinent part, "Matters discussed in executive sessions must be treated as confidential; that is, never discussed outside of that executive session. A violation of confidentiality will lead to disciplinary action as established by the Commissioner of Education."

The board did not include the proposed item on the board's March 8 agenda. Thereafter, petitioner requested that the item be added to the next meeting agenda. Petitioner also made a Freedom of Information Law ("FOIL") request for documentation used by the board to define and/or set criteria for "confidential information." This appeal ensued.

Petitioner contends that policy 1730 is overbroad and invalid. He further contends that the board failed to abide by its policy regarding agenda items.

Respondent maintains that petitioner fails to state a claim upon which relief may be granted and asserts that it followed its procedures. Respondent asserts that petitioner's allegations regarding FOIL must be dismissed for lack of jurisdiction.

I must first address issues concerning the record. Subsequent to petitioner's reply, respondent submitted an amended attorney's affidavit and a supplemental affidavit of the Director of Human Resources ("Director"). The attorney's affidavit made some minor corrections and included a numbered paragraph and a sentence that were previously omitted in error. The Director's affidavit stated that on May 10, 2005, the board considered a revision to policy 1730 and intended to consider the revision for final approval at its June meeting. I have accepted the attorney's amended affidavit since it makes minor corrections, and the Director's affidavit since it relates to events that occurred after the submission of respondent's answer.

In addition, my Office of Counsel made two requests for additional information related to this appeal. First, in the context of another appeal by petitioner, my Office of Counsel received confirmation that petitioner's term expired on June 30, 2005 and he is no longer a member of the board. In addition, my Office of Counsel requested and received confirmation that policy 1730 was amended by the board on June 14, 2005. Specifically, the section on confidential information was amended to state, "No Board of Education member may disclose confidential information acquired by him/her in the course of his/her official duties or use such information to further his/her personal interests, as set forth in General Municipal Law, Section"

Petitioner's challenge to the former version of policy 1730 is moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). Since the policy has been amended, and the language objected to by petitioner is no longer in effect, his claims against the policy must be dismissed as moot.

To the extent petitioner alleges a violation of the board's policy regarding the submission of agenda items by board members, the matter must be dismissed 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). Inasmuch as petitioner is no longer a member of the board, he lacks standing to complain about the board's internal practices concerning submissions by board members.

Finally, to the extent petitioner alleges FOIL violations, his claims must be dismissed for lack of jurisdiction. Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Milazzo, 43 Ed Dept Rep 294, Decision No. 14,999; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876; Appeal of Rowe, 41 id. 189, Decision No. 14,660).

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