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Decision No. 15,346

Application of HEMPSTEAD PARENTS/ COMMUNITY UNITED for the removal of Betty Cross as a member of the Board of Education of the Hempstead Union Free School District and for a stay order of certain actions of the board of education.

Decision No. 15,346

(January 24, 2006)

Berkman, Henoch, Peterson & Peddy, P.C., attorneys for respondents, Gilbert Henoch and Joseph E. Macy, Esqs., of counsel

MILLS, Commissioner.--Petitioner, an association of community members, seeks the removal of Betty Cross ("Cross") from office as a member of the Board of Education of the Hempstead Union Free School District ("board"). Petitioner also seeks a stay of certain actions taken by the board on October 21, 2004 and other subsequent meetings. The application must be denied.

At its October 21, 2004 meeting, the board voted to terminate the employment of its superintendent of schools, Nathaniel Clay, and hire Susan Johnson as superintendent. Cross presented and voted in favor of those resolutions. At that meeting, Cross and other board members declined to consult the board's attorneys prior to adopting the resolutions. Petitioner contends that such actions by the board and Cross were improper.

Petitioner also asserts that Cross procured employment and district contracts for personal acquaintances, and that she behaved in an insulting and threatening manner at board meetings. Petitioner also claims Cross misused district property, such as a cell phone, failed to account for certain fundraising and failed to file required financial disclosure statements. Petitioner asserts that Cross's conduct warrants her removal.

Petitioner also seeks a stay of board action taken at the October 21, 2004 meeting and all subsequent meetings. On December 3, 2004, petitioner's request for interim relief was denied.

Cross asserts that petitioner lacks standing to maintain the appeal, and that petitioner fails to establish a basis for her removal. Cross also maintains that she is entitled to a certificate of good faith pursuant to Education Law �3811.

Initially, I note that petitioner's reply is untimely and contains material that should have been submitted with its petition. A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR �275.14[a]). If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (id.). Cross's affidavit of service indicates that her answering papers were served by mail on November 24, 2004. Thus, petitioner's reply should have been served no later than December 8, 2004. Petitioner served its reply on December 11, 2004. The reply, therefore, is untimely.

Petitioner lacks standing to maintain the appeal. At the time of initiation of the appeal, Hempstead Parents/Community United was an unincorporated association of parents and residents of the district. An unincorporated association lacks standing to maintain an appeal under Education Law �310 (Application of Simmons, 43 Ed Dept Rep 7, Decision No. 14,899; Appeal of D'Oronzio and D'Agostino, 41 id. 457, Decision No. 14,745). The petition is verified by two individuals only in their capacity as co-chairs of the association. Subsequent to the filing of this appeal, petitioner submitted additional papers, pursuant to �276.5 of the Commissioner's regulations, indicating that it had incorporated under the New York State Not-for-Profit Corporation Law. Although I have accepted petitioner's papers for consideration, I note that incorporation does not operate retroactively. At the time the appeal was commenced, petitioner was an unincorporated association and, thus, lacked standing to bring this appeal.

Petitioner also may not maintain the appeal as representative of a class of "children of the Hempstead Publ ic School District." 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 Ockimey, 44 id. 169, Decision No. 15,136; Appeal of Garmaeva, 43 id. 253, Decision No. 14,988). A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Garmaeva, 43 Ed Dept Rep 253, Decision No. 14,988; Appeal of Broardt, 42 id. 126, Decision No. 14,796). Petitioner's pleadings are entirely devoid of any allegations addressing these criteria. Therefore, to the extent petitioner seeks class certification, class status is denied.

The application also 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). According to records in possession of the State Education Department, Cross's term of office expired on June 30, 2005 and she no longer is a member of the board. Accordingly, petitioner's request for Cross's removal is academic.

In its request for relief, petitioner seeks a stay of certain actions of the board taken at its meeting on October 21, 2004 "and all subsequent meetings." Petitioner's request for a stay was denied on December 3, 2004. Because petitioner seeks no other relief with respect to the board's actions, beyond the stay request, that portion of petitioner's appeal is also moot.

Although the application is denied for the foregoing reasons, one administrative matter remains. Cross has requested that I grant her a certificate of good faith pursuant to Education Law �3811(1). Such certification is solely for the purpose of authorizing the board to indemnify Cross for legal fees and expenses incurred defending a proceeding arising out of the exercise of her powers or performance of her duties as a board member. It is appropriate to issue such certification unless it is established on the record that the requesting board member or trustee acted in bad faith (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Zimmerman, et al., 42 id. 205, Decision No. 14,823). On the evidence in the record before me, I am constrained to issue a certification for the limited purpose of �3811(1), with the admonition that it is in no way intended to be construed as approval of the alleged actions.