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Decision No. 15,357

Appeal of HEMPSTEAD PARENTS/COMMUNITY UNITED from action of the Board of Education of the Hempstead Union Free School District.

Decision No. 15,357

(January 24, 2006)

Berkman, Henoch, Peterson & Peddy, P.C., attorneys for respondent, Ronald P. Labeck, Esq., of counsel

MILLS, Commissioner.--Petitioner, an association of community members, appeals certain actions of the Board of Education of the Hempstead Union Free School District ("respondent"). The appeal must be dismissed.

Petitioner appeals, on behalf of the children in the district, from certain actions taken at respondent's meetings on October 21 and October 26, 2004. Specifically, petitioner challenges respondent's determination to terminate the contract of its superintendent of schools, Nathaniel Clay, and appoint Susan Johnson as superintendent. Petitioner also challenges respondent's determination to approve appointment of legal counsel to represent one of its members, Thomas Parsley, Jr., in another proceeding. Petitioner also complains of certain personnel and program decisions made at those meetings. For relief, petitioner seeks a "stay order" of respondent's actions at its October 21 and October 26, 2004 meetings "and all subsequent meetings thereafter."

Respondent maintains that its actions were in all respects proper. On December 3, 2004, petitioner's request for interim relief was denied.

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 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 Public 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 appeal is also 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). The only relief requested by petitioner is an interim order enjoining respondent's actions at meetings on October 21 and October 26, 2004 "and all subsequent meetings thereafter." 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, petitioner's appeal is moot.