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Decision No. 15,517

Appeal of HARVEY B. LEVINSON from action of the Board of Education of the East Meadow Union Free School District regarding the use of district funds.

Decision No. 15,517

(January 23, 2007)

Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Michael D. Raniere, Esq., of counsel

MILLS, Commissioner.--Petitioner, the elected Chairman of the Nassau County Board of Assessors, challenges certain publications by the Board of Education of the East Meadow Union Free School District (“respondent”) as an alleged improper use of district funds.  The appeal must be dismissed.

For the 2005-2006 school year, the district’s taxpayers approved a budget that reflected a 5.45% increase in the tax levy from the previous school year.  Many taxpayers, however, saw tax increases far greater than 5.45% on their tax bills, apparently due to reassessed property values determined by the County Department of Assessment.

In response to calls and letters about the increase, the superintendent and respondent’s president distributed a joint newsletter to district residents dated November 15, 2005 entitled “NO TAXATION WITHOUT EXPLANATION!”  In addition, in November and December 2005, the district distributed its newsletter “Steps to Learning” in which it published questions and answers and a taxpayer’s bill of rights, respectively.  In January 2005, the district distributed a flyer for a meeting scheduled for January 17, 2006, including the topic entitled “The property valuation practice of the County Assessor: Science or Magic. . .?”  This appeal ensued.  Petitioner’s request for interim relief was denied on April 6, 2006.

Petitioner alleges that the publications were improperly funded with district funds and contain inaccurate and sensationalist exhortations intended to influence public opinion and to hold petitioner responsible for high taxes.  He seeks a determination that the district’s  publications constitute an impermissible use of school funds and that the district be barred from distributing such literature in the future. 

Respondent admits that it published newsletters and letters containing information for taxpayers regarding their property taxes but denies that it accused petitioner of any wrongdoing.  Respondent contends that the petition is untimely and fails to state a claim upon which relief may be granted.  Respondent also contends that petitioner lacks standing to bring this appeal, that the publications cited by petitioner do not constitute an improper expenditure of school funds, and that the Commissioner lacks authority to grant the relief requested.

     The petition 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). District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeal of Allard, 43 id. 167, Decision No. 14,957).

     Here, petitioner seeks a determination that the literature distributed by the district constitutes an impermissible use of school funds.  Although respondent challenged his standing in its answer, petitioner failed to avail himself of the opportunity in the reply to state whether he resides in the district and is a district taxpayer.  In the absence of any evidence that petitioner is a district resident and taxpayer, I find he lacks standing to challenge the expenditure of district funds.

     To the extent petitioner alleges that the remarks made by respondent and others were potentially slanderous, the Commissioner of Education has no jurisdiction to adjudicate such claims.  Any alleged defamation claims petitioner may have against respondent may be raised in a court of competent jurisdiction (Appeal of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050). 

In light of this disposition, I need not address the parties’ other contentions.