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Decision No. 17,827

Appeal of JEANMARIE LIVIGNI, from action of the Board of Education of the Port Washington Union Free School District regarding alleged conflicts of interest.

Decision No. 17,827

(April 1, 2020)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Howard M. Miller, Esq., of counsel.

Tahoe., Interim Commissioner.--Petitioner appeals from alleged action taken by a member of the Board of Education of the Port Washington Union Free School District (“respondent”) with respect to certain statements and conduct.  The appeal must be dismissed.

Deborah Brooks currently serves as a member of respondent’s board of education.  Prior to her election to this position, Ms. Brooks opposed, or was critical of, certain assessments administered by the New York State Education Department (“SED”).  Ms. Brooks indicates in an affidavit submitted with this appeal that, in 2013, she joined the “Long Island Opt-Out Facebook page.”  Ms. Brooks further indicates that, in March 2015, she co-founded an organization called “Port Washington Advocates for Public Education.”  The record further reflects that petitioner has been affiliated with an organization called “Port Washington Allies for Public Education.”

In this appeal, petitioner alleges that Ms. Brooks has, prior and subsequent to her election, expressed support for the “opt-out” movement.  Petitioner specifically asserts that Ms. Brooks has continued to serve in organizations that encourage parents to ensure that their students do not take certain SED assessments.  Petitioner requests  determinations:  (1) “that holding a position in ... any organization whose main purpose is to further the Opt Out Movement” is inconsistent with a board member’s duties and responsibilities; and (2) “that all activities related to such conflicts ... cease and desist” during any school board member’s term of office.

Respondent asserts that the appeal must be dismissed because:  (1) the petition does not raise a justiciable controversy because the petition seeks relief that is declaratory or advisory in nature; (2) petitioner fails to state a cause of action upon which relief may be granted; and (3) the matter is moot because Ms. Brooks no longer serves as an officer in any of the advocacy groups that she participated in before she was elected as a school board trustee.

First, I must address a procedural issue.  Petitioner’s reply, which is captioned “Verified Response,” does not contain an affidavit of verification.  Pursuant to §275.5 of the Commissioner’s regulations, all pleadings in an appeal must be verified by one of the parties.  Petitioner’s reply is not verified; therefore, I have not considered it (Appeal of a Student with a  Disability, 59 Ed Dept Rep, Decision No. 17,721; Appeal of Roth, 56 id., Decision No. 17,012; Appeal of J.L., 41 id. 62, Decision No. 14,615).

The appeal must be dismissed as seeking an advisory opinion.  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 He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).  While petitioner complains of prior statements and affiliations of Ms. Brooks, she does not seek any relief against Ms. Brooks– for example, her removal from office (see Education Law §306).[1]  Instead, petitioner merely seeks an advisory opinion that school board members may not, consistent with their duties and responsibilities, directly or indirectly support abstention from SED assessments.  There are no specific allegations that Ms. Brooks engaged in inappropriate conduct while serving as a board member.[2]  Thus, petitioner’s query is advisory in nature and cannot be the subject of an appeal brought pursuant to Education Law §310 (Appeal of Lombardo, 44 Ed Dept Rep 167, Decision No. 15,135; Appeal of Coleman, et al., 42 id. 265, Decision No. 14,845; Appeal of Razzano, 39 id. 303, Decision No. 14,244).

While the appeal must be dismissed, I note that Ms. Brooks submits an affidavit in which she denies “advocat[ing] that any school district or school administrator refuse to administer ... state tests.”  Ms. Brooks further asserts that she “would never advocate for that as a sitting Board Member” and that she “understand[s] fully that until such time as the system of testing has been changed at the State level, local school boards must comply with ... current mandates.”  Ms. Brooks additionally states that:

In order to avoid even any potential appearance of impropriety, after the election and before taking my oath (and before I knew about the existence of the instant petition), I took it upon myself to withdraw from being an officer in any public education-related advocacy group, and I also withdrew from being the administrator of the Long Island Opt-Out Facebook page and the Post Washington Advocates for Public Education Facebook page.

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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Therefore, even if justiciable, the appeal would be dismissed as moot to the extent petitioner complains of Ms. Brooks’ participation in the above organizations.

In light of this determination, I need not address the parties’ remaining contentions.




[1] Additionally, to the extent petitioner asserts claims against Ms. Brooks under Education Law §306 or §310, she has failed to join her as a respondent in this proceeding.  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Petitioner did not name Ms. Brooks in the caption of the appeal or serve her with a copy of the petition.


[2] While petitioner alleges that petitioner “co-authored” and “posted a draft of” a letter critical of SED assessments after her election to office (but before she was sworn in as a board member), respondent denies this allegation.  Petitioner’s documentary evidence in this regard is unpersuasive because one of the documents is undated and the other is ambiguously dated “June 5”; additionally, there is no evidence in the record that Ms. Brooks actually published this letter in physical or electronic form.