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Decision No. 16,134

Appeal of KATHLEEN VENDEL, et al., from actions of the Board of Education of the Marion Central School District regarding public participation at board meetings and interactions with the community and application for removal of various individuals in relation thereto.

Decision No. 16,134

(August 20, 2010)

Wayne A. Vander Byl, Esq., attorney for respondent

STEINER, Commissioner.--Petitioners, one hundred individual school district residents, appeal certain actions of the Board of Education of the Marion Central School District (“respondent”) in relation to public participation at board meetings and certain interactions with the community, including respondent’s actions relating to a complaint of harassment.  They also seek the removal of various individuals.  The appeal and application must be dismissed.

At its July 13 and August 17, 2009 meetings, respondent permitted community members to speak during a “community forum” on its agenda.  Prior to opening the community forum, respondent’s president stated that each individual would be afforded three minutes to speak.  At the July 13, 2009 meeting, the three minute rule was challenged by some community members, including petitioner Vendel (“Vendel”).  Respondent ultimately permitted Vendel to exceed the three minute time period and read a statement on behalf of district parents.  The statement raised a number of parental concerns regarding district operations and student performance.

At its August 17, 2009 meeting, respondent adopted rules of order for public participation at board meetings that, among other things, included the three minute rule.  In doing so, respondent’s president cautioned against individuals disrupting board meetings and referenced the July 13, 2009 meeting as an example.

On August 21, 2009, a New York State Trooper (“Trooper”) emailed Vendel’s place of employment as part of an investigation of an alleged charge of harassment brought against her, referencing certain alleged actions by Vendel in relation to her conduct at board meetings and with certain school employees.  This appeal ensued.

Petitioners challenge the imposition of a time limitation on public participation at respondent’s meetings and question the process respondent used in imposing its rules of order.  The petition sets forth a chronological recitation of various interactions between certain petitioners and the school board, individual board members, district staff, the Trooper and Vendel’s employers during the relevant time period.  They raise a number of questions relating to those interactions and, as relief, seek investigations, declarations, assistance in obtaining additional facts about district staff conduct, and, if warranted, removal or dismissal of respondent’s members and other individuals.  They also seek protection of district employees, as necessary, and reimbursement of expenses incurred by Vendel in connection with these matters.  Finally, petitioners ask that respondent be directed to permit any student who so desires to participate in programs operated by the board of cooperative educational services.

Respondent contends the appeal and application must be dismissed on procedural grounds.  Specifically, respondent maintains that petitioners lack standing to maintain the appeal, that the petition and reply are not properly verified, that petitioners have failed to join necessary parties, that the appeal is untimely in part, and that the relief sought is not within the jurisdiction of the Commissioner of Education.  Respondent also asserts that the petition does not contain a clear and concise statement of petitioners’ claim showing that they are entitled to the relief sought.

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).  Mere status as a resident and a taxpayer in a school district is not sufficient to confer standing to challenge school board policies (Appeal of Kushner, 49 Ed Dept Rep 263, Decision No. 16,020). 

Although petitioners, as community members, question the propriety of respondent’s actions, as well as the actions of the Trooper, and seek declaratory rulings and investigations, the petition contains no allegation of specific harm to any individual petitioner, with one exception.  Vendel complains about respondent’s actions in making a harassment complaint against her to law enforcement and the Trooper’s conduct in the investigation of that complaint.    Thus, with the exception of Vendel’s allegations about the harassment complaint against her, there has been no showing that any of the petitioners are personally aggrieved by the board policy or actions complained of.  The appeal, therefore, must be dismissed for lack of standing, except with respect to Vendel’s claims relating to the harassment complaint.

In addition, neither the petition nor petitioners’ reply are properly verified.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  Petitioners’ reply contains no verification and, thus, cannot be considered.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  Here, the affidavit of verification, although signed by Vendel, is stated instead to be on the oath of Carol Moranz who is not a petitioner in this appeal.  The Commissioner’s regulations require the petition to be verified by the oath of at least one of the petitioners (8 NYCRR §275.5).  Petitioners’ failure to properly verify the petition warrants dismissal of the appeal and application. 

To the extent that the petition seeks removal of individual board members and relief against the Trooper, petitioners have failed to join them as parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  No individual board member has been named or served in the application, nor has the Trooper.

Moreover, the record indicates that the Trooper is not an officer or employee of the Marion Central School District.  Consequently, he is not subject to the jurisdiction of the Commissioner of Education.

To the extent that petitioners challenge any actions in relation to the July 13, 2009 board meeting, the appeal is untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The appeal was commenced on September 1, 2009, more than 30 days after the July 13, 2009 meeting.

In addition, the remaining relief sought by petitioners cannot be granted.  To the extent petitioners seek investigations to obtain information, an appeal to the Commissioner is appellate in nature and does not provide for such relief (Application of V.M., 46 Ed Dept Rep 531, Decision No. 15,584; Appeal of Koehler, 46 id. 425, Decision No. 15,553).  Petitioners also seek definitions and explanations with respect to respondent’s assertions of improper conduct by certain petitioners.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (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; Appeal of Pochat, 45 id. 343, Decision No. 15,342).

To the extent petitioners seek reimbursement of expenses incurred by Vendel, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).

As to petitioners’ request for respondent’s rules for changing board policy, petitioners may seek such information from respondent pursuant to the Freedom of Information Law (“FOIL”)(Public Officers Law, Article 89) and, if necessary, may challenge respondent’s compliance with FOIL in the Supreme Court of the State of New York (Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Appeal of Berman, 46 id. 64, Decision No. 15,442; Appeal of Hubbard, 45 id. 451, Decision No. 15,379). 

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

For the benefit of the parties, I note that a board of education should, whenever possible and appropriate, consider public input on matters under consideration.  However, a board has the right to control the agenda at board meetings, and there is no statutory mandate that requires a board to permit public input at its meetings (Appeal of Kushner, 49 Ed Dept Rep 263, Decision No. 16,020; Appeal of Michalski, et al, 33 id. 505, Decision No. 13,130).