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Decision No. 17,020

Appeal of H.D. and S.D. from action of the Board of Education of the Three Village Central School District regarding residency and transportation.

Decision No. 17,020

(December 22, 2016)

Guercio & Guercio, LLP, attorneys for respondent, Randy Glasser, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Three Village Central School District (“respondent”) that their three grandchildren (“the students”) are eligible to attend the district’s schools tuition-free and receive transportation pursuant to the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”).  The appeal must be dismissed.

The record indicates that the students have attended respondent’s schools since the 2009-2010 school year.  On or about July 8, 2009, respondent admitted the students to its schools based upon information provided by the student’s mother indicating that the students and their parents lived with petitioners within the district.  In July 2010, respondent received an anonymous telephone call in which the caller stated that the students’ mother and the students were not living in the district.  Subsequently, respondent convened a residency hearing on July 21, 2010.  As a result of this hearing, the district concluded that the students were homeless pursuant to McKinney-Vento and State law and permitted them to attend its schools.

Since that time, petitioners have sent several letters to the district asserting that the students do not reside within respondent’s district.  In a letter dated April 28, 2013, petitioners wrote to the district’s superintendent, alleging that the students and their mother were not district residents and asking “if any formal investigation had been done into [sic] this matter.”  Petitioners stated that they were “not submitting a FOIL at this time” and indicated that they “hope[d] to speak with [the superintendent] as soon as possible.”  The superintendent responded to this letter on May 6, 2013, declining to address the specific students in this case due to privacy concerns and explaining the district’s general policy regarding the admission of homeless children.  The superintendent further stated that “whenever we determine that students may be attending our schools illegally, we investigate their residency and take whatever action is appropriate.”

Petitioners subsequently sent another letter to both the superintendent and respondent’s president dated May 27, 2013.  In this letter, petitioners alleged that the district “side stepped the issue” and reiterated their allegation that the students and their mother did not reside within respondent’s district.  The May 27, 2013 letter also contained a Freedom of Information Law (“FOIL”) request, which the district denied in letters dated May 30, 2013 and June 17, 2013.  This appeal ensued.

Petitioners allege on appeal that respondent failed to adhere to board of education policy and State and federal laws and regulations in allowing their grandchildren to attend its schools.  Petitioners further allege that neither the students nor their mother have ever resided with them within respondent’s district and that the actions and decisions by respondent were arbitrary and capricious.  Petitioners allege that the students are not and were never homeless as defined by applicable statutes and regulations.  Petitioners seek, among other things, that the students be removed from the district; to recoup tax dollars which respondent allegedly misappropriated since the beginning of the 2009 school year by allowing the students to attend, and be transported to and from, respondent’s schools; and that the student’s mother be held responsible for the students’ past tuition and transportation costs.

Respondent argues that the petition should be dismissed because petitioners lack standing to maintain this appeal, the petition is untimely, and petitioners failed to join the students’ mother, who is a necessary party.  Respondent also alleges that it acted appropriately at all times relevant to this appeal, and that the Commissioner does not have jurisdiction to, among other things, order the recoupment of tax dollars or order the students’ mother to pay for past tuition and transportation costs.  Lastly, respondent asks that I not consider certain evidence submitted by petitioners.

Initially, I must address several procedural matters.  Petitioners submitted a reply and respondent submitted a sur-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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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.  Accordingly, there is no need for me to consider respondent’s sur-reply, which requests that I disregard those portions of the reply which are not responsive to new material or affirmative defenses.

Additionally, following service of their reply and respondent’s sur-reply, petitioners submitted additional documents on October 11, 2013.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Petitioners did not seek prior approval to submit the additional documents; accordingly, I will not accept them.  Therefore it is unnecessary to consider respondent’s objection thereto.

Next, respondent alleges that petitioners lack standing to maintain this appeal.  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).  District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Strade, et al., 48 Ed Dept Rep 73, Decision No. 15,797; Appeal of Russo, 47 id. 429, Decision No. 15,744; Appeal of Houdek, 47 id. 415, Decision No. 15,740).

Respondent correctly asserts that petitioners do not purport to be parents, legal guardians, or custodians of the students.  However, in this case, petitioners are district residents who are challenging an alleged illegal expenditure of funds by the board.  Specifically, petitioners assert that the board allowed the students to gain “illegal entrance” into the district, thus misusing taxpayer funds to fund the students’ education and transportation costs.  Accordingly, to that extent, petitioners have standing to bring this appeal.

Regarding respondent’s assertion that the petition 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 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).

Here, as petitioners admit, the petition is untimely.  Petitioners served respondent on August 19, 2013.[1]  To the extent petitioners attempt to challenge actions taken by respondent in 2009 and 2010, such claims are clearly untimely.  Petitioners also appeal the May 6, 2013 decision of the district superintendent not to disclose information about the students and informing petitioners that the district “investigate[s] ... residency and take[s] whatever action is appropriate” upon a determination that a student is not legally entitled to attend its schools.  Thus, affording five days for mailing, petitioners were required to serve the petition by June 10, 2013, but did not do so until August 19, 2013.  Even assuming, arguendo, that respondent’s June 17, 2013 letter concerning petitioners’ FOIL request could serve as the date upon which the decision complained of was made, petitioners would have been required to serve respondent by July 15, 2013.  Petitioners’ service of the petition on August 19, 2013, therefore, was untimely.

Petitioners argue that their late appeal should be excused because the district “never informed [them] of the appeals process” and they only learned of the appeal process “now.”  However, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  Petitioners allege no unusual circumstances here and, accordingly, this appeal must be dismissed as untimely. 

Nevertheless, the appeal must be dismissed because the students’ mother is a necessary party and petitioners failed to join her in this appeal.  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

Here, petitioners request that I order respondent to exclude the students from the district.  Were I to grant this relief or the other relief petitioners seek as against the students’ mother, she would be adversely affected by that result.  Therefore, she is a necessary party to this appeal and should have been joined as a respondent.  Petitioners’ failure to join her warrants dismissal of the appeal (see e.g. Appeal of R.G., 54 Ed Dept Rep, Decision No. 16,682).

To the extent petitioners intend to raise claims under FOIL and/or the federal Family Educational Rights and Privacy Act (“FERPA”), the Commissioner lacks jurisdiction to consider such claims.  The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]; 34 CFR Part 99; Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509; Appeal of R.J.M., 46 id. 262, Decision No. 15,502).  Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations 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 Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

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



[1] The affidavit of service indicates that it was notarized on “August 19, 2014.”  It appears this was a typographical error and should read August 19, 2013