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Decision No. 15,749

* Subsequent History: Matter of Board of Educ. of Greenwood Lake Union Free School Dist. v Mills; Supreme Court, Albany County; Judgment dismissed petition to review; February 17, 2009. *

Appeal of the BOARD OF EDUCATION OF THE GREENWOOD LAKE UNION FREE SCHOOL DISTRICT from action of the Board of Education of the Tuxedo Union Free School District relating to the expenditure of school district funds.

Decision No. 15,749

(May 12, 2008)

Guercio & Guercio, attorneys for petitioner, Raymond G. Keenan, Esq., of counsel

Ehrlich, Frazer & Feldman, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Tuxedo Union Free School District (“Tuxedo” or “respondent”) relating to the special district meeting held by the Board of Education of the Greenwood Lake Union Free School District (“petitioner” or “Greenwood”) on December 12, 2007.  The appeal must be dismissed.

Petitioner does not have a high school and contracts with other districts pursuant to Education Law §2040 to educate its high school students.  Petitioner has sent its students to respondent’s high school since 1981 pursuant to successive tuition agreements entered into between petitioner and respondent.  The current one-year tuition agreement between the parties expires on June 30, 2008.  Petitioner has entered into discussions with Warwick Valley Central School District (“Warwick”) concerning the education of its secondary students at Warwick.

On December 12, 2007, petitioner and Warwick held separate special district meetings to obtain voter approval of a multi-year tuition agreement for the education of petitioner’s secondary students at Warwick’s high school.   The tuition referendum was approved by the voters in petitioner’s district (1,045 to 338).  However, the referendum was rejected by Warwick voters (2,716 to 428).  This appeal ensued.  Petitioner’s request for interim relief was denied on November 15, 2007. 

Petitioner alleges that respondent took unauthorized actions “designed to improperly influence” the results of petitioner’s special district meeting.  It requests that I issue an order finding respondent’s use of district resources to influence petitioner’s referendum to be unauthorized and improper.  Petitioner further requests that I order respondent to review its policies regarding the use of district resources to guard against improper partisan political activity.

Respondent denies that its actions were improper and alleges that petitioner has failed to state a sufficient legal basis for the relief requested.  Respondent also contends that the appeal is moot and that the petition must be dismissed for lack of standing.

On December 20, 2007, petitioner sought permission to submit additional materials produced by Tuxedo after petitioner commenced this appeal.  Specifically, petitioner requests that I consider advertisements in the local newspaper marked “Paid for by the Tuxedo Union Free School District,” a December 2007 newsletter from Tuxedo entitled “Save Our Schools Newsletter” and an internal memorandum from Tuxedo’s high school principal to the high school faculty and staff members entitled “Possible Implications of a Greenwood Lake -Warwick Contract.”  Pursuant to §276.5 of the Commissioner’s regulations, I have accepted and considered these materials.

Respondent argues that that appeal 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 Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Samuel, 45 id. 418, Decision No. 15,371; Appeal of Hubbard, 45 id. 266, Decision No. 15,316).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Polmanteer, et al., 44 Ed Dept Rep 221, Decision No. 15,155; Appeal of Murphy, et al., 39 id. 562, Decision No. 14,311).  District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Sweeney, 44 id. 176, Decision No. 15,139; Appeal of Allard, 43 id. 167, Decision No. 14,957).  Here, petitioner considers itself aggrieved by respondent’s alleged improper partisan political activity with regard to petitioner’s tuition referendum held on December 12, 2007.  To the extent that petitioner challenges respondent’s allegedly improper actions with respect to petitioner’s special district meeting, petitioner has standing to bring this appeal.  However, since petitioner is neither a district resident nor a taxpayer of respondent’s district, I find that it lacks standing to challenge respondent’s expenditure of district funds and its policies related thereto (see Appeal of Levinson, 46 Ed Dept Rep 309, Decision No. 15,517).

Petitioner also challenges respondent’s actions to allegedly influence the vote that took place on December 12, 2007.  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 C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  The vote took place on December 12, 2007 and was approved by a wide margin by the voters of petitioner’s district.  The remaining claims must therefore be dismissed as moot.

While I am constrained to dismiss the appeal on procedural grounds, I urge respondent to review its policies and its future use of district resources in light of the Court of Appeals holding in Phillips v. Maurer (67 NY2d 672).