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Decision No. 16,126

Appeal of TRANSPORT WORKERS UNION LOCAL 100 and LISA LAMAR from action of the New York City Department of Education regarding withholding of funds.

Decision No. 16,126

(August 20, 2010)

Cary Kane LLP, attorneys for petitioner, Larry Cary, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Toni Gantz, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal the refusal of the New York City Department of Education (“respondent”) to reimburse the Metropolitan Transit Authority (“MTA”) for free and reduced price MetroCards used for transportation by students attending respondent’s schools.  The appeal must be dismissed.

Petitioner Transport Worker’s Union Local 100 (“TWU”) is a collective bargaining representative of petitioner Lisa Lamar (“Lamar”) and approximately 38,000 employees of the New York City Transit Authority, MTA Bus and the Manhattan and Bronx Surface Transit Operating Authority, all of which are subsidiaries of the MTA.  Lamar has two sons who, during the 2009-2010 school year, attended respondent’s schools.  Lamar’s sons used public transportation to get to school, paid for with full fare student discounted MetroCards.

One method respondent uses to transport students to its schools is by providing reduced fare and full fare MetroCards enabling students to use public transportation.  In December 2009, the MTA issued a press release regarding its proposed budget for 2010.  Included within the budget was a proposal to eliminate one-half of the student discount MetroCards in September 2010 and the rest in September 2011.  On March 24, 2010, the MTA issued another press release outlining the service changes approved by its board for the 2010 budget year.  This press release states that “a proposal to eliminate free and discounted student MetroCards was not acted upon today.”

TWU attempts to bring this appeal on behalf of “[its] hundreds and probably thousands of members” who have children who are eligible for discounted or full fare student MetroCards.  Petitioners assert that, because New York City has failed to pay its portion of the student reduced fare and full fare MetroCard fee to MTA, the program is being eliminated.  Petitioners seek an order requiring New York City, on behalf of respondent, to pay MTA whatever amount is owed and required to keep the MetroCard program operating.

Respondent argues that the appeal should be dismissed for failure to state a claim upon which relief may be granted and that both petitioners lack standing.  Respondent also argues that the claim is not ripe for review and is untimely.  Additionally, respondent asserts that the appeal cannot be maintained as a class action.

Initially, I must address petitioners’ reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed because both petitioners lack 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 Jefferson, 46 Ed Dept Rep 487, Decision No. 15,572; Appeal of Himmelberg and Little, 46 id. 228, Decision No. 15,490; Appeal of Riccinto, 46 id. 39, Decision No. 15,435).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Jefferson, 46 Ed Dept Rep 487, Decision No. 15,572; Appeal of L.A., et al., 46 id. 450, Decision No. 15,561).  TWU, a collective bargaining representative for certain union employees, asserts that “hundreds and probably thousands of members of the Union have children who are eligible for student metrocards ... As such, the Union claims an interest in the instant proceeding.”  This interest however, is too attenuated to establish standing.  TWU is not asserting its union members’ rights as employees, rather it asserts a claim on behalf of its members who are parents that have children who use MetroCards.  TWU cannot assert standing simply because some of its members may be affected by the alleged action.  Thus, I find that TWU lacks standing.

Additionally, Lamar has failed to establish that she has been personally aggrieved by respondent’s actions.  She has offered no evidence that respondent is no longer providing discounted or full fare MetroCards to her children.  Accordingly, I find that Lamar also lacks standing.

It is well established that the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of L.A., et al., 46 Ed Dept Rep 450, Decision No. 15,561; Appeal of Vaught, 46 id. 398, Decision No. 15,544).  There is no evidence that any reduced fare or full fare MetroCards have been eliminated.  Thus, the appeal must also be dismissed as premature.

Petitioners’ request for class status must also be denied.  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 Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Appeal of Manes, 46 id. 419, Decision No. 15,551; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  Petitioners have not established that the issues of fact and law in this appeal are the same for all members of the proposed class.  Moreover, petitioners have failed to set forth the number of individuals they seek to represent and that all questions of law and fact would be common to all members of the class (Appeal of Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Appeal of Manes, 46 id. 419, Decision No. 15,551; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  Therefore, class status is denied.

Finally, the relief requested by petitioners in this appeal is that I order the City of New York to pay amounts owed MTA.  Respondent correctly asserts that I have no jurisdiction under Education Law §310 to review the actions of the governing authorities of counties or cities.  Therefore, to the extent petitioners challenge a decision made by the governing authority of New York City, to deny payment to the MTA, I am without jurisdiction to review such a challenge (Appeal of Schiavi, 40 Ed Dept Rep 615, Decision No. 14,569).

In view of this disposition, I need not discuss the parties’ remaining contentions.