Appeal of JANET MAZZI, on behalf of her daughter BRITTANY, from action of the Boards of Education of the Greenwood Lake Union Free School District, Tuxedo Union Free School District, Chester Union Free School District and Warwick Valley Central School District regarding nonresident tuition contracts.

Decision No. 16,824

(August 31, 2015)

Lamb & Barnosky, LLP, attorneys for respondent Greenwood Lake Union Free School District, Lauren Schnitzer, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent Tuxedo Union Free School District, James H. Pyun, Esq., of counsel

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent Chester Union Free School District, Allison E. Smith, Esq., of counsel

Girvin & Ferlazzo, P.C., attorneys for respondent Warwick Valley Central School District, Kristine A. Lanchantin, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from action of the Boards of Education of the Greenwood Lake Union Free School District (“Greenwood Lake”), Tuxedo Union Free School District (“Tuxedo”), Chester Union Free School District (“Chester”), and Warwick Valley Central School District (“Warwick”) (collectively “respondents”) regarding nonresident tuition contracts.  The appeal must be dismissed.

Petitioner is a resident of respondent Greenwood Lake.  Respondent Greenwood Lake is a kindergarten through eighth grade school district that contracts with neighboring school districts on a tuition basis for the education of its high school students.  According to the record, Greenwood Lake had entered into separate nonresident tuition contracts with Tuxedo, Warwick, and Chester, each for a term of September 1, 2013 through June 30, 2015.  As such, for the 2014-2015 school year, Greenwood Lake students had the option of attending high school in Tuxedo, Chester, or Warwick at Greenwood Lake’s expense, pursuant to the terms of the agreements with those districts.  During the 2014-2015 school year, petitioner’s daughter attended Tuxedo’s high school pursuant to the nonresident tuition contract between Greenwood Lake and Tuxedo.  

For the 2015-2016 school year, Greenwood Lake has entered into 22-month successor agreements with Chester and Warwick for the education of its high school students, which were approved by respondent in September 2014.  However, according to the record, Greenwood Lake was unable to reach a successor agreement with Tuxedo.  By letter dated April 1, 2015, Greenwood Lake’s superintendent notified petitioner and other parents of Greenwood Lake students attending Tuxedo’s high school that, for the 2015-2016 school year, Greenwood Lake resident students would not have the option of attending Tuxedo at Greenwood Lake’s expense, and that they would have to transfer either to Chester or Warwick’s high schools.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 11, 2015.

Petitioner asserts that Greenwood Lake “revoked its 35 year policy of agreement with [Tuxedo]” and “cancelled” its contract with Tuxedo for the instruction of Greenwood Lake students at Tuxedo’s high school despite its “promise” to allow its students to finish their education at the school of their choice.  She seeks to have Tuxedo continue educating Greenwood Lake students at Greenwood Lake’s expense.  Petitioner seeks various other relief, including removal of the entire Greenwood Lake board and forcing the Greenwood Lake superintendent to negotiate a new agreement with Tuxedo in good faith or be replaced or superseded by someone appointed by the Commissioner; that I “appoint an investigator or an ombudsman or a special commission with investigative powers with strict scrutiny powers to tell administrators to cease and desist from” intimidating students not to choose Tuxedo; “that the commissioner mandates a permanent relationship between Tuxedo and Greenwood Lake”; and that respondent Greenwood Lake be prohibited from holding executive session for three years “or that an observer be appointed by the commissioner and sworn to secrecy to be allowed to attend all executive sessions.”  She also asserts that her First Amendment rights are being violated.

Respondent Greenwood Lake asserts that class status must be denied and that the appeal must be dismissed as untimely.  It also asserts that petitioner has failed to satisfy her burden of establishing the facts upon which she seeks relief and because she has not demonstrated a clear legal right to the relief requested.  Specifically, it asserts that it did not cancel its nonresident tuition contract with Tuxedo and that it never had a policy of entering into agreements with Tuxedo nor promised that petitioner’s daughter could attend school in Tuxedo through graduation tuition-free.  Moreover, Greenwood Lake asserts that it is vested with the authority and discretion to negotiate and enter into nonresident tuition contracts with neighboring districts pursuant to Education Law §§2040 and 2045.  Therefore, it properly exercised its statutory authority and discretion when it approved successor contracts with Chester and Warwick but decided not to enter into a successor contract with Tuxedo.  Finally, Greenwood Lake asserts that the appeal must be dismissed because it is not ripe for review and/or it seeks an advisory opinion from the Commissioner and that the Commissioner lacks jurisdiction to decide novel issues of constitutional law.

Respondent Tuxedo contends that it did not act to discontinue the education of Greenwood Lake students at its high school; instead, Greenwood Lake chose not to renew the current contract with Tuxedo and declined to enter into good faith negotiations for a successor contract.[1]  Tuxedo further submits that it “remains open in principal [sic]” to renegotiating a contract with Greenwood Lake for the education of Greenwood Lake students.  However, Tuxedo would require at least a fixed tuition cost per Greenwood Lake pupil that is either the applicable State-approved rate (known as the “Seneca Falls formula”) or the amount of Tuxedo’s actual tuition costs and expenses. 

Respondents Chester and Warwick assert that Petitioner lacks standing to obtain relief against Chester and Warwick, respectively, and that petitioner failed to allege facts sufficient to state a claim that would entitle her to the relief sought in the petition.  Chester contends that it had no authority over or relationship to the decisions made by Greenwood Lake and Tuxedo with regard to students attending Tuxedo.  Finally, Chester asserts that its decision was rationally based and neither arbitrary nor capricious.

As an initial matter, the appeal must be dismissed to the extent petitioner attempts to assert claims on behalf of students in respondent’s district other than her daughter.  Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]).  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 Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Petitioner asserts that 130 students, including her daughter (approximately 45 seniors, 45 juniors, and 40 sophomores), who intended to finish their education at Tuxedo are “forced to leave Tuxedo and choose another school not of their choosing.”  Although the petition is not entirely clear, petitioner appears to assert claims on behalf of all 130 students.  She attaches to the petition unsworn student “affidavits” from 12 Greenwood Lake students who attended Tuxedo’s high school during the 2014-2015 school year as a “small representation” of “interested parties.”  While petitioner has standing to bring this appeal on her own behalf to the extent she has been aggrieved, she lacks standing to assert the rights of others (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).  Therefore, the appeal is dismissed as to the claims asserted on behalf of Greenwood Lake’s students who attended Tuxedo in 2014-2015, other than petitioner’s daughter.

Furthermore, petitioner has not made the requisite showing to maintain a class appeal on behalf of residents of Greenwood Lake who attended Tuxedo in 2014-2015.  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 Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  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 Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Petitioner has not made this showing.  In fact, the petition does not address the requisite standard at all.  While petitioner states generally that 130 Greenwood Lake students attending Tuxedo High School “are now forced to leave Tuxedo and choose another school not of their choosing,” it is unclear from the record who the students are and whether they share all questions of law and fact at issue in this appeal.  While petitioner submits unsworn “affidavits” from 12 students, none of those students are named as petitioners.  It is petitioner’s burden to set forth the number of individuals she seeks to represent and show that all questions of law and fact would be common to all members of the class, and on this record I find that petitioner has failed to meet her burden.  Therefore, class status is denied. 

Respondent Greenwood Lake asserts that the appeal must be dismissed because petitioner’s claims are not ripe for review.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752). Greenwood Lake contends that “Petitioner’s daughter is free to continue to attend Tuxedo’s high school through June 30, 2015 ... and she is thereafter free to continue to attend Tuxedo’s high school at her own expense.”  As such, according to Greenwood Lake, petitioner’s claims are premature because her requested relief is based “on the assumption that her daughter will not, at some point in the future, be entitled to attend the Tuxedo high school.” The crux of petitioner’s claims is that respondent Greenwood Lake and Tuxedo have failed to enter into a contract for the 2015-2016 school year that would allow Greenwood Lake resident students an opportunity to attend Tuxedo’s high school tuition-free.  Petitioner does not need to wait for “some point in the future” to be denied enrollment in Tuxedo’s high school tuition-free.  By virtue of Greenwood Lake and Tuxedo’s failure to contract for the 2015-2016 school year, petitioner’s daughter is denied the opportunity to attend Tuxedo’s high school tuition-free.  Therefore, I decline to dismiss petitioner’s claims as premature. 

In that regard, to the extent petitioner asserts claims against respondents Chester and Warwick, such claims must be dismissed as premature.  Petitioner claims, among other things, that her daughter will not be able to be valedictorian or salutatorian and that her class ranking will be lost as a result of transferring out of Tuxedo.  The record contains no evidence indicating that petitioner has enrolled in either district.  Therefore, such claims against Chester and Warwick are speculative and must be dismissed as premature.   

Petitioner’s request that the entire Greenwood Lake board be removed must be dismissed, as an appeal pursuant to §310 of the Education Law is not the proper forum to seek removal pursuant to Education Law §306 (see Appeal of J.H. and T.H., 54 Ed Dept Rep, Decision No. 16,688).  Even if I construed the petition as an application for removal of the board members pursuant to Education Law §306, the application for removal would be dismissed for failure to join the individual board members petitioner seeks to remove (see Appeal of Affronti, 55 Ed Dept Rep, Decision No. 16,756) and for failure to name the board members in the caption and provide the notice required by 8 NYCRR §277.1(b) (see Appeal of Affronti, 55 Ed Dept Rep, Decision No. 16,756; Application of Knapp, 41 id. 41, Decision No. 14,608).

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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  Petitioner asserts that Greenwood Lake “revoked its 35 year policy of agreement with [Tuxedo]” and “cancelled” its contract with Tuxedo for the instruction of Greenwood Lake students at Tuxedo’s high school.  Respondent Greenwood Lake contends that petitioner has not shown that any of these acts occurred because the contract with Tuxedo remained “in full force and effect through June 30, 2015” and that none of these alleged actions occurred within 30 days prior to commencement of this appeal.  According to the record, by letter dated April 1, 2015, Greenwood Lake’s superintendent notified petitioner and other parents of Greenwood Lake students attending Tuxedo’s high school that Tuxedo had rejected Greenwood Lake’s proposed contract and that, for the 2015-2016 school year, Greenwood Lake resident students would not have the option of attending Tuxedo at Greenwood Lake’s expense and would have to transfer either to Chester or Warwick’s high schools.  Therefore, affording the usual five days for mailing, petitioner had until May 6, 2015 to commence the instant appeal.  According to petitioner’s affidavit of service, the petition was served on April 15, 2015, on respondent Greenwood Lake, and on April 16, 2015, on the remaining respondents.  The appeal is therefore timely.

Turning to the merits,  Education Law §§2040 and 2045 and §174.4 of the Commissioner’s regulations authorize a board of education to designate one or more school districts for the purpose of contracting for the education of some or all of its resident pupils.  Education Law §2040 provides as follows:

1. Any school district may decide by a majority vote of the qualified voters present and voting at a district meeting:

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c. To contract for a period of not less than two and not more than five years for the education of all the high school pupils of grades seven to twelve, inclusive, of such district in another school district in this state or in an adjoining state, instead of maintaining a home high school for such grades.

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2. Such contract may be made with one or more school districts. The designation of the school districts with which such contracts may be made shall be made pursuant to the commissioner's regulations.

Section 174.4(b) of the Commissioner’s regulations further provides as follows:

The board of education of the sending school district shall designate by resolution a receiving school district(s) for the purpose of contracting for the education of pupils residing in the sending school district. Such resolution shall be adopted no later than the first day of April preceding the school year in which pupils of the sending school district will be educated by the receiving school district (8 NYCRR 174.4[b]).

Petitioner asserts that Greenwood Lake “revoked its 35 year policy of agreement with [Tuxedo]” and “cancelled” its contract with Tuxedo for the instruction of Greenwood Lake students at Tuxedo’s high school despite its “promise” to allow its students to finish their education at the school of their choice.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Respondent Greenwood Lake asserts that it did not cancel its nonresident tuition contract with Tuxedo and that there was no guarantee that petitioner’s daughter could attend school in Tuxedo through graduation tuition-free.  According to the record, the nonresident tuition contract between Greenwood Lake and Tuxedo was effective from September 1, 2013 through June 30, 2015.  The contract provides that, “in the event that no successor contract is reached, there is no guarantee that Greenwood Lake students who have attended high school in Tuxedo will continue to attend Tuxedo through their graduation.”  Thus, by its own terms, the contract expressly does not promise petitioner or her daughter that petitioner’s daughter would be able to finish her education at Tuxedo.  Nor is there any evidence in the record that Greenwood Lake cancelled the contract prior to its expiration.

 

Moreover, Greenwood Lake is vested with the authority and discretion to negotiate and enter into nonresident tuition contracts with neighboring districts pursuant to Education Law §§2040 and 2045 and §174.4(b) of the Commissioner’s regulations.  The record lacks evidence indicating that Greenwood Lake and Tuxedo failed to negotiate in good faith or that Greenwood Lake abused its statutory authority and discretion when it approved successor contracts with Chester and Warwick but decided not to enter into a successor contract with Tuxedo.  Petitioner has failed to submit any evidence whatsoever demonstrating that Greenwood Lake and Tuxedo were obligated to enter into a successor contract.  Petitioner has not demonstrated any statutory or other legal basis for her daughter to continue to attend Tuxedo tuition-free during the 2015-2016 school year. 

With regard to petitioner’s claim that petitioner’s First Amendment rights are being violated, I note that an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).

Petitioner’s request that respondent Greenwood Lake be prohibited from holding executive session for three years “or that an observer be appointed by the commissioner and sworn to secrecy to be allowed to attend all executive sessions” must be dismissed for lack of jurisdiction.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

In light of this disposition, I need not address petitioner’s remaining contentions.

THE APPEAL IS DISMISSED.

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