* Subsequent History: Matter of DeVera v Elia; Supreme Court, Albany County (Elliot, J.); Judgment dismissed petition to review; June 8, 2016; revd and remitted to Commissioner for further proceedings 152 AD3d 13 (3d Dept. 2017); lv granted 30 NY3d 907 (2017); affd 32 NY2d 423 (2018).  Commissioner issued Decision No. 17,574. *

Appeal of ELAINE DE VERA, individually and on behalf of her son M.F., et al.,* from action of the New York City Department of Education regarding a contract for the statewide universal full-day pre-kindergarten program.

Decision No. 16,882

(February 26, 2016)

Emily A. Kim, Daniel N. Soleimani and Laura Asserfea, Esqs., attorneys for petitioners

Zachary W. Carter, Corporation Counsel, attorney for respondent, Elizabeth C. De Gori and Eric B. Porter, Esqs., of counsel

ELIA, Commissioner.--Petitioners challenge the New York City Department of Education’s (“DOE” or “respondent”) action in requiring execution of a contract as a condition of payment to Success Academy Charter Schools - NYC (“Success Academy NYC”) for Statewide Universal Full-day Pre-kindergarten (“SUFDPK”) programs established pursuant to Education Law §3602-ee at Success Academy Charter School - Harlem 1 (“SA Harlem 1”), Success Academy Charter School - Cobble Hill (“SA Cobble Hill”) and Success Academy Charter School - Williamsburg (“SA Williamsburg”).  The appeal must be sustained in part.

Petitioners are Success Academy NYC on behalf of SA Harlem 1, SA Cobble Hill and SA Williamsburg and the parents of 23 children who attend the pre-kindergarten programs at SA Harlem 1, SA Cobble Hill or SA Williamsburg for the 2015-2016 school year.  SA Harlem 1, SA Cobble Hill and SA Williamsburg are charter schools operated by Success Academy Charter Schools (“Success Academy”), a charter school management organization that currently operates 34 charter schools in New York City.  In her affidavit, the Chief Operations Officer of the Operations Department for Success Academy, the charter management organization, explained that Success Academy NYC is authorized by the Board of Trustees of the State University of New York (“SUNY”) and “governs” SA Harlem 1, SA Cobble Hill and SA Williamsburg.

In 2014, the Legislature added a new section §3602-ee to Article 73 of the Education Law (as added by Section 1 of Part CC of Chapter 56 of the Laws of 2014) to establish the SUFDPK program.  Chapter 53 of the Laws of 2014 appropriated $340 million for such programs, with a total of $300 million allocated to the New York City region and $40 million allocated to the rest of the State.  Funds for pre-kindergarten programs operating pursuant to Education Law §3602-ee are awarded pursuant to a request for proposals (“RFP”) process administered by the New York State Education Department (“Department”).  Awards are made to school districts submitting consolidated applications which may include pre-kindergarten programs offered by schools, non-profit organizations, community-based organizations, charter schools,[1] libraries and/or museums (“eligible providers”)[2] (Education Law §3602-ee[3][a]).  Prior to submitting a consolidated application to the Department, school districts are required to solicit eligible providers to be included in their application (Education Law §3602-ee[3][b]). 

All SUFDPK programs must demonstrate quality on eight elements: curriculum; learning environment, materials and supplies; family engagement; staffing patterns; teacher education and experience; facility quality; physical well-being, health and nutrition; and partnerships with non-profit, community and educational institutions (Education Law §3602-ee[2]).  Programs that meet quality standards and all applicable requirements may be renewed (Education Law §3602-ee[3][d]).

On May 31, 2014, pursuant to Education Law §3602-ee, the Department released an “Announcement of Funding Opportunity” for the SUFDPK program, commencing in 2014-2015, to award grants to incentivize and fund state-of-the art innovative pre-kindergarten programs and to encourage creativity through competition (“Department’s RFP”).  The Department’s RFP required that proposals demonstrate innovation and high quality as well as address student and community need and it indicated that the program will “ensure high-quality early care and education by requiring all grantees to demonstrate quality program standards.”  The Department’s RFP set forth the program requirements that school districts and eligible providers, which may include charter schools, were required to meet or assure to be eligible to receive a SUFDPK grant.  It required that, except as otherwise provided, all SUFDPK programs comply with the same rules and requirements as universal pre-kindergarten (“UPK”) programs funded pursuant to Education Law §3602-e, including Commissioner’s regulations §151-1, and incorporate the implementation of such requirements in their program design.

In addition, the Department’s RFP required that SUFDPK programs operate under the jurisdiction of the local board of education, which would be responsible for the proper disbursement of and accounting for project funds.  The Department’s RFP required applicants to certify that the program would be conducted in accordance with all applicable federal and State laws and regulations, application guidelines and instructions.  Applicants were also required to sign a Statement of Assurances regarding the program.  The Department’s RFP explained that the project period for grants in year one would be from July 1, 2014 to June 30, 2015, and that grantees would have the opportunity to renew funding on an annual basis provided that the programs meet quality standards and all applicable requirements, and subject to the annual appropriation of funds in the State budget for this purpose.

In response to the Department’s RFP, DOE submitted a Notice of Intent, and, on July 10, 2014, a consolidated application.  In its consolidated application, DOE indicated that the SUFDPK program would support its effort to expand innovative, high-quality programs and meet the need for more full-day seats across the city.  DOE addressed each of the eight quality elements and certified that its program would be conducted in accordance with all applicable federal and State laws and regulations, application guidelines and instructions and signed the Statement of Assurances.  On August 18, 2014, the Department issued an award letter to DOE[3] and a preliminary list of awardees was posted on the Department’s website.

On December 3, 2014, DOE released its own RFP directed to charter schools[4] interested in providing SUFDPK programs for the 2015-2016 school year (“DOE’s RFP”).  DOE’s RFP provided that it was intended to identify eligible high-quality early childhood providers to collaborate with DOE’s Division of Early Childhood Education (“DECE”).  It was open to charter schools serving any of DOE’s 32 community school districts that could provide a consistent weekly schedule for a full-day program between 8:00 am and 4:30 pm, 5 days per week for 180 days of the school year.  It set forth the program expectations and indicated that awards would be made to charter schools that demonstrate the ability to meet programmatic quality and operational expectations as well as DOE’s and the Commissioner’s regulations.  DOE’s RFP also described the basis for contract awards and payment structure, including that contract awards were subject to timely completion of contract negotiations between DOE and the “selected proposer.”  DOE’s RFP included the following language: “NO PAYMENTS WILL BE MADE BY THE DOE UNTIL THE CONTRACT IS REGISTERED WITH THE NYC COMPTROLLER’S OFFICE” (emphasis in original).  A sample contract was included as an attachment to DOE’s RFP.

In January 2015, Success Academy NYC submitted separate applications, on behalf of SA Harlem 1, SA Cobble Hill and SA Williamsburg, to DOE for funding to provide pre-kindergarten instruction for the 2015-2016 school year.  In March 2015, DOE advised Success Academy NYC that it found the proposed programs to be “conditionally eligible for award” “subject to timely completion of contract negotiation and timely submission of contract documents.”  In April 2015, SA Harlem 1, SA Cobble Hill and SA Williamsburg held admission lotteries to fill pre-kindergarten seats, and according to the petition, Success Academy NYC received 47 applications for each available seat.

According to the Chief Executive Officer (“CEO”) for DECE, on August 4, 2015, DOE sent proposed contracts (“proposed contract”) to SA Harlem 1, SA Cobble Hill and SA Williamsburg.  The proposed contract included an attachment setting forth DOE’s standard terms and conditions which contained the following provision:

If this Agreement contains any unlawful provisions or portions thereof, they shall be deemed deleted from the Agreement and the remainder of the Agreement shall remain in full force and effect.  If the deletion of such provision frustrates the purpose of this Agreement either party may make an application to the Chancellor’s designee for relief.

On August 24, 2015, SA Harlem 1, SA Cobble Hill and SA Williamsburg began their pre-kindergarten classes.  By email dated August 27, 2015, DOE congratulated Success Academy NYC on the opening of its pre-kindergarten classes but advised that, until a contract is executed, “you are operating your Pre-K classrooms at your own risk.”

By letter to DOE dated October 2, 2015, the Executive Vice President, Policy and Legal Affairs to Success Academy, the charter management organization, indicated that Success Academy NYC “cannot execute” the proposed contract because it is “violative of New York Education Law.”  She asked to be advised whether DOE was “willing to amend the contract to remove all provisions exceeding [its] authority.”  On October 7, 2015, SA Harlem 1, SA Cobble Hill and SA Williamsburg submitted invoices to DOE for their pre-kindergarten programs.

On October 15, 2015, DOE responded to Success Academy’s October 2, 2015 letter indicating that “the City cannot begin the payment without a signed contract that has been registered with the Comptroller.”  This appeal ensued.

Petitioners assert that DOE failed to provide funding for the pre-kindergarten programs provided at SA Harlem 1, SA Cobble Hill and SA Williamsburg in violation of Education Law §3602-ee.  They seek a declaration that DOE’s pre-kindergarten contract is unlawful and contrary to Education Law and an order directing DOE to remit the appropriate payment to Success Academy NYC.[5]

DOE contends that petitioners have not met their burden of demonstrating a clear legal right to the relief they request; that DOE is required to inspect all pre-kindergarten programs and that its authority to inspect is not abrogated if the pre-kindergarten provider is a charter school; that the terms of DOE’s proposed contracts with Success Academy NYC fall within DOE’s inspection authority and are reasonable; that petitioners’ claims are barred by laches; and that its actions were in all respects legal, proper and in conformity with applicable laws and regulations.  It further contends that, should I find that any provision of DOE’s proposed contract exceeds DOE’s authority, such finding should not invalidate the entire contract.  It requests that the appeal be dismissed in its entirety.

Initially, respondent raises as an affirmative defense that the appeal must be dismissed for laches.  The equitable doctrine of laches bars the enforcement of a right where there has been unreasonable and inexcusable delay that results in prejudice to a party (Skrodelis v. Norbergs, 272 AD2d 316).  The legal doctrine of laches precludes a party from unreasonably sitting on its rights, irrespective of any corresponding prejudice to the adverse party (Matter of Central School District No. 2 of Towns of Coeymans, et al., v. New York State Teachers’ Retirement System, et al., 27 AD2d 265, 268; see also Devens v. Gokey, et al., 12 AD2d 135, 137; Appeal of the Board of Education of the Manhasset Union Free School District, 49 Ed Dept Rep 428, Decision No. 16,072).  Respondent argues that, under the legal doctrine of laches, Success Academy NYC’s failure to object to the terms of the contract until the commencement of this appeal in October 2015, two months after it had received the proposed contract and after it began operating its pre-kindergarten programs on August 24, 2015, should bar petitioners from relying in this appeal upon the harm caused by the decision to delay.

Here, the record indicates that DOE sent proposed contracts to SA Harlem 1, SA Cobble Hill and SA Williamsburg on August 4, 2015, and that they began operating their SUFDPK programs on August 24, 2015 without having signed the contract, and continued to do so after being informed on August 27, 2015 that such conduct was at their own risk.  By letter dated October 2, 2015, Success Academy objected to the proposed contract, to which respondent replied on October 15, 2015 by stating that it could not begin payments without signed contracts.  This appeal was commenced on October 30, 2015.  I acknowledge that the record reflects that Success Academy NYC was aware of the contract terms in August and not only began but continued to operate the programs without having signed the contracts.  However, under these circumstances, where petitioners commenced the appeal within 30 days of respondent’s notification that payments would not begin without signed contracts, I decline to dismiss the appeal based on laches.

Turning to the merits, the central issues presented in this appeal are whether respondent properly required Success Academy NYC to execute a contract as a condition of payment under its SUFDPK program and, if so, whether the terms of such contract are consistent with Education Law Article 56 (“Article 56”) and §3602-ee.  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).

With respect to the first issue, petitioners assert that DOE’s refusal to provide payment to Success Academy NYC for pre-kindergarten programs at SA Harlem 1, SA Cobble Hill and SA Williamsburg without an executed contract violates Education Law §3602-ee.  They argue that schools that are (1) approved to provide pre-kindergarten instruction and (2) have provided documentation of eligible expenditures, are entitled to payment and that DOE cannot impose any additional conditions upon payment, such as execution of a contract, once factors (1) and (2) have been met.  They claim that SA Harlem 1, SA Cobble Hill and SA Williamsburg were approved by DOE to provide pre-kindergarten instruction and that each school provided documentation of eligible expenditures, and therefore, Success Academy NYC is entitled to payment.

Contrary to petitioners’ position, I find DOE’s requirement that pre-kindergarten programs operating under its consolidated application enter into a contract with DOE to be rational and reasonable.  Just as the State routinely requires grant recipients to execute contracts as part of the State procurement process (see State Finance Law §112), it is not unreasonable for a school district to require a contract as part of its procurement process.  Education Law §3602-ee, viewed in its entirety, supports this conclusion. 

As both parties note, the purpose of the SUFDPK program is to “incentivize and fund state-of-the-art innovative pre-kindergarten programs and to encourage program creativity through competition.”  As described above, funds for pre-kindergarten programs operating pursuant to Education Law §3602-ee were awarded pursuant to an RFP process administered by the Department.  Awards were made to school districts submitting consolidated applications which could include pre-kindergarten programs offered by eligible providers, including charter schools (Education Law §3602-ee[3][a]).

All SUFDPK programs must demonstrate quality on eight elements: curriculum; learning environment, materials and supplies; family engagement; staffing patterns; teacher education and experience; facility quality; physical well-being, health and nutrition; and partnerships with non-profit, community and educational institutions (Education Law §3602-ee[2]).  Programs that meet quality standards and all applicable requirements may be renewed in subsequent years (Education Law §3602-ee[3][d]).

Therefore, contrary to petitioners’ argument, approval to provide pre-kindergarten instruction and documentation of expenditures are not the only requirements for payment under the SUFDPK program.  There must be mechanisms in place to ensure that such programs continue to provide quality services throughout the grant term.  Indeed, funding for the SUFDPK program is provided through a competitive award process administered by the Department that includes program quality requirements as well as requirements for the disbursement of program funds.

In its consolidated application to the Department seeking funds to establish SUFDPK programs, DOE provided assurances that it would meet the requirements set forth in the Department’s RFP, including that it would ensure proper disbursement of and accounting for funds under each program operated by an eligible provider, including charter schools, and that it would maintain on file and provide to the Department as requested a copy of any contracts or agreements between those providers and the school district to implement a pre-kindergarten program. 

The record indicates that to select the eligible providers with which it would collaborate to provide SUFDPK programs, DOE also used a competitive award process.  DOE’s RFP included a section describing the basis for contract awards and procedures, which provided that contract awards were subject to timely completion of contract negotiations.[6]  DOE’s RFP also included a description of the payment structure and clearly indicated that no payments would be made by DOE until the contract was registered with the New York City Comptroller’s Office.

Success Academy NYC chose to respond to DOE’s RFP and submitted separate applications to provide SUFDPK programs at SA Harlem 1, SA Cobble Hill and SA Williamsburg.  In March 2015, DOE advised Success Academy NYC of the payment requirements in the conditional eligibility letters.

In early August 2015, Success Academy NYC received DOE’s proposed contracts, which included an attachment setting forth DOE’s standard terms and conditions which contains the following provision:

If this Agreement contains any unlawful provisions or portions thereof, they shall be deemed deleted from the Agreement and the remainder of the Agreement shall remain in full force and effect.  If the deletion of such provision frustrates the purpose of this Agreement either party may make an application to the Chancellor’s designee for relief.

Success Academy NYC did not execute the proposed contracts, but nevertheless began to operate pre-kindergarten programs at SA Harlem 1, SA Cobble Hill and SA Williamsburg on August 24, 2015.  Indeed, Success Academy NYC continued to operate such programs after being advised by DOE on August 27, 2015 that doing so without an executed contract was at Success Academy NYC’s “own risk,” and now seeks payment for those programs.  Because Success Academy NYC did not execute a contract with DOE, which was one of the requirements set forth in DOE’s RFP to receive payment for its pre-kindergarten programs, it is not entitled to payment for such programs merely on the basis that it was approved to provide pre-kindergarten instruction and provided documentation of eligible expenditures.  

Moreover, as a recipient of public grant funds from the State, DOE has the responsibility to ensure proper disbursement and expenditure of the use of such public funds.  Paying Success Academy NYC for pre-kindergarten programs when it has not met the requirements for payment is not only inconsistent with DOE’s assurances to the Department and the competitive award process, but also with §328 of the New York City Charter, which provides that no contract or agreement shall be implemented until a copy has been filed with the comptroller. 

In addition, I note that in her affidavit, DECE’s CEO indicated that Success Academy NYC is the only charter school provider participating in the SUFDPK program that has not signed a contract, and that the other 277 providers for the 2015-2016 school year have already signed.  As noted above, the SUFDPK program is funded through a competitive award process.  The objective of such process is to facilitate each agency’s mission, while protecting the interests of the State and its taxpayers and promoting fairness in the contracting process.  Success Academy NYC cannot be treated differently than the other charter school providers that met the contracting requirements under DOE’s RFP.  Based on the above, I cannot conclude that DOE’s requirement that eligible providers participating in its consolidated application, including Success Academy NYC, execute a contract was unreasonable or otherwise improper.  Therefore, I find that, in the absence of an executed contract, DOE was not required to pay Success Academy NYC for its pre-kindergarten programs.

Having found that DOE properly required Success Academy NYC to execute a contract as a condition of payment under its SUFDPK program, I turn now to the question of whether the terms of such contract are consistent with Article 56 and Education Law §3602-ee.  Petitioners argue that DOE’s proposed contract cannot serve as a condition precedent to payment of pre-kindergarten funding because the proposed contract attempts to grant DOE extraordinary and illegal oversight and purports to regulate every aspect of charter school pre-kindergarten programming in violation of Education Law §§2854(1)(b) and 3602-ee(12). 

First, petitioners claim that DOE lacks jurisdiction to regulate monitoring, programmatic review and operational requirements of SUFDPK programs run by charter schools because, pursuant to Education Law §3602-ee(12), such requirements “shall be the responsibility of the charter entity and shall be consistent with the requirements under Article 56 of the Education Law.”

I agree with petitioners that Education Law §3602-ee(12) states that the monitoring, programmatic review and operational requirements for SUFDPK programs shall be the responsibility of the charter entity, in this case the SUNY trustees.  However, for the reasons stated below, I disagree with petitioners’ interpretation of this language.  Moreover, I disagree with petitioners’ argument that the effect and intent of Education Law §3602-ee(12) is to prohibit school districts such as DOE, which operate SUFDPK programs via consolidated applications that include charter schools as eligible providers, from regulating the pre-kindergarten programs being funded through the consolidated application.  To take petitioners’ position to its logical conclusion would mean that DOE would be required to provide charter schools’ pre-kindergarten programs with public funding without any mechanism to ensure that the statutorily required eight quality elements and other program requirements are being met and that such public funds are being spent in accordance with the requirements of Education Law §3602-ee, the Department’s RFP and DOE’s RFP.

To the contrary, as described above, Education Law §3602-ee(2) requires that all participating programs demonstrate quality in the following eight areas:  curriculum; learning environment, materials and supplies; family engagement; staffing patterns; teacher education and experience; facility quality; physical well-being, health and nutrition; and partnerships with non-profit, community and educational institutions.  In addition, Education Law §3602-ee(7) provides that, except as otherwise provided in §3602-ee, SUFDPK slots shall only be awarded to support programs that otherwise comply with the rules and requirements pursuant to Education Law §3602-e.  Education Law §3602-e(7) also contains requirements for pre-kindergarten programs, as does §151-1.3 of the Commissioner’s regulations, which sets forth uniform quality standards for pre-kindergarten classrooms.  These statutes and regulations set forth the SUFDPK program requirements and DOE as a grant recipient has the obligation to comply with such requirements. In addition, under the Department’s RFP, DOE was required to detail how the quality elements for pre-kindergarten services offered by it and its collaborating eligible providers would be met.  As discussed above, DOE was authorized to require eligible providers to enter into contracts to ensure that the pre-kindergarten program requirements were being met. 

The Department’s RFP, DOE’s RFP and DOE’s proposed contract are designed to ensure that SUFDPK programs operating under a school district’s consolidated application demonstrate quality in all eight elements and meet other program requirements.  While petitioners argue in conclusory fashion that the requirements set forth in DOE’s proposed contract regarding the eight quality elements are overly onerous, bureaucratic and inconsistent with Article 56 and Education Law §3602-ee(12), I am unable to find that they have met their burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief.  Aside from their general objections to DOE’s proposed contract requirements for meeting the eight quality elements, petitioners fail to demonstrate how the programmatic components of the contract provisions they cite directly conflict with the provisions of Article 56 and Education Law §3602-ee(12).  Petitioners generally object to DOE’s regulation of “every aspect” of their programs, including in their “non-exhaustive” list of objections:  curriculum, play, rest, field trips, meals, exercise, computer usage, breaks, dates of the school year, staff qualifications, class size, professional development plans for personnel, and family engagement.  However, Education Law §3602-ee(3) clearly contemplates that school districts would develop consolidated applications under which various eligible providers including charter schools would participate and each of these areas are linked to the eight program quality elements required in Education Law §3602-ee(2).

For example, petitioners object that Article 5(h) of DOE’s proposed contract regulates the “school day down to the minute, dictating” that students be provided with access to blocks and dramatic play materials for at least two hours and seven minutes per day, and that computer screen time be limited to 15 minutes per day.  DECE’s CEO explains that DOE uses the Early Childhood Environment Rating Scale Revised Edition (“ECERS-R”) to assess the quality components of SUFDPK programs.  According to the CEO, ECERS-R is a “research-based quality assessment tool widely used for evaluating classrooms serving children between the ages of 2 1/2 through 5 years of age over a wide range of program areas.”  The CEO explains that this requirement is derived from ECERS-R’s requirement that, in order to achieve a score of “Good,” programs must provide access to such materials for a substantial portion of the day, which is defined as at least one third of the time the children are in attendance.  Also in order to achieve a score of “Good” on the ECERS-R, programs must limit computer use time to 15 minutes per day as required in Article 5(i) of the proposed contract.  Under these circumstances, while petitioners may disagree with DOE’s proposed contract requirements, I find that they are consistent with DOE’s responsibility under Education Law §3602-ee(2) to ensure that SUFDPK program providers demonstrate quality in specific areas, specifically with respect to curriculum and the learning environment.  Furthermore, petitioners have not identified any specific provision in Article 56 that conflicts with such program requirements.

In response to petitioners’ complaint regarding Article 5(b)(2) of DOE’s proposed contract, which limits SUFDPK providers’ authority to “reject, suspend, expel or otherwise refuse to provide any or all of the Services to any eligible child,” DOE explains that it has a “strong interest in ensuring that disciplinary measures in the consolidated UPK program are age and developmentally appropriate and that 4 year-olds receiving services within the consolidated UPK program are not subject to suspensions or expulsions.”  DOE has articulated a rationale for its requirement that is based in sound educational policy and is not inconsistent with Education Law §3602-ee.  While petitioners have included such provision in their “non-exhaustive” list, they have articulated no rationale as to how such provision violates either Article 56 or Education Law §3602-ee.

Similarly, in response to petitioners’ complaint regarding Article 5(c) of DOE’s proposed contract, which limits field trips, DECE’s CEO explains that DOE has an interest in placing a reasonable limit on the number of yearly field trips requiring transportation, in order to ensure that the pre-kindergarten programs in DOE’s consolidated applications are efficiently using limited available State resources.  DOE has articulated a rationale for this contract requirement that is based in sound educational policy and petitioners have not established that it is inconsistent with Education Law §3602-ee or Article 56.

Petitioner also objects to the “labyrinthine” rules for scheduling “short breaks” as provided in Article 5(j) of DOE’s proposed contract.  I note, however, that the provision is permissive, and thus not a requirement. 

Petitioners also object to that part of Article 5(b)(4) of the proposed contract which provides that monitoring[7] and support of the program will include an assessment of curriculum planning and implementation.  However, I note that the contract also provides that curriculum shall be guided by the New York State Pre-kindergarten Foundation for the Common Core (“NYSPKFCC”), an indicator of quality under the New York State Pre-kindergarten Program Quality Assurance Protocol (“Protocol”).  Such a requirement is consistent with DOE’s responsibility under Education Law §3602-ee(2) to ensure that SUFDPK program providers demonstrate quality in specific areas, including curriculum.  Furthermore, petitioners have not identified any specific provision in Article 56 that conflicts with such program requirements, nor can they because Article 56 does not include pre-kindergarten program requirements.

Petitioners also object to that part of Article 5(b)(4) of the proposed contract which provides that “the Board reserves the right to require Provider to implement certain curriculum and activities specified by the Board from time to time, including any professional development activities,” and Article 20(a) which imposes a minimum of four professional development days.  Petitioners claim that, through such provisions, DOE impermissibly attempts to regulate teacher training.  However, professional development is an indicator of quality under the Protocol, and Article 20 of the contract imposes only a minimum number of professional development days.  Petitioners have not established that these provisions are inconsistent with Education Law §3602-ee or Article 56.

Petitioners also argue that Article 14 of DOE’s proposed contract “dictates down to absurd minutiae,” including a requirement that SUFDPK program providers complete attendance forms by entering “P” for present, “A” for absent and “E” for excused absence.  While petitioners argue that their own attendance record-keeping system is “far more efficient,” they provide no evidence that respondent’s requirement violates Education Law §3602-ee or Article 56.  Moreover, DECE’s CEO avers that this is an administrative necessity:

[I]t is administratively untenable for the DOE to collect and harmonize attendance data from such a wide variety of programs if such data were kept in a manner which differed from program to program.  Accordingly, the DOE must require providers to track and report attendance data to the DOE in a consistent and uniform manner.

However, nothing in the [c]ontract prohibits Success’ programs from also using their own ‘attendance-record keeping system’ in addition to completing the DOE’s attendance forms.

Petitioners also argue in conclusory fashion in their “non-exhaustive” chart that the requirements set forth in DOE’s contract regarding the eight quality elements are overly onerous, bureaucratic and contrary to Article 56.  Without further explanation, petitioners claim that various provisions in the proposed contract addressing areas such as curriculum, instruction, hours of operation, nutrition, exercise, rest, and playtime[8] violate Education Law §3602-ee(12).  Aside from general objections to DOE’s requirements for meeting the eight quality elements, petitioners fail to demonstrate how the programmatic components of the contract provisions they cite directly conflict with the provisions of Article 56.  For example, petitioners assert only that Article “5(b)(general supervision by DOE)” of DOE’s proposed contract is illegal because DOE lacks jurisdiction to regulate monitoring, programmatic review and operational requirements of pre-kindergarten pursuant to Education Law §3602-ee(12).  Article 5(b) of DOE’s proposed contract provides that under the general supervision of the DOE Chancellor, the provider shall provide various services, which are aligned with the eight quality elements, in accordance with the terms, conditions and specifications expressed in the Structured Proposal form.  The Structured Proposal form, which is part of DOE’s RFP, is completed by the eligible provider and provides the opportunity to describe, among other things, how the eligible provider will address the quality elements.  I note that with respect to curriculum, Success Academy NYC indicated that it would provide a “high-quality,” multi-domain approach aligned with the NYSPKFCC.

Petitioners also assert that Articles “5(b)(6)(instruction)” and “5(b)(8)-(b)(15)(curriculum)” are illegal.  Article 5(b)(6) requires supports for all children, including English Language Learners, which is an indicator of curriculum quality.  Similarly, Article 5(b)(8) – 5(b)(15) regulate other aspects of curriculum as well as learning environment, including providing support for transitional services into the pre-kindergarten program, providing opportunities for children to work independently and providing daily opportunities for various types of activities.  Again, petitioners have not identified any specific provision in Article 56 that conflicts with these program requirements in the contract.  Accordingly, I am unable to find that they have met their burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief. 

Petitioners also challenge Article 27 of the proposed contract which grants representatives of DOE and the Department the right to visit, inspect, review and audit the provider’s sites, facilities and records, and to observe and evaluate the provider’s programs, functions and services at any time without prior notice.  However, petitioners admit that §3602-ee(10) requires that such programs be “inspected by” the Department, DOE and its respective licensing, permitting, regulatory, oversight, registration or enrolling agency or entity no fewer than two times per school year, with at least one such inspection being performed by the eligible agency’s respective licensing, permitting, regulatory, oversight, registration or enrolling agency.[9] 

In addition, petitioners concede that Education Law §3602-ee(6) requires the Department to develop a Statewide inspection protocol, which shall provide for annual inspections of all SUFDPK program providers using a “quality assurance protocol and physical plant review protocol” developed by the Department.  Respondent, as the school district with which the charter schools are partnering, is required to conduct quality assurance and physical plant reviews under Education Law §3602-ee(10) and that authority is not inconsistent with Education Law §3602-ee(12), which provides that the monitoring, programmatic review and operational requirements are the responsibility of the charter entity.

As noted above, Education Law §3602-ee(12) provides that charter entities have responsibility for all monitoring, programmatic review and operational requirements.  However, it does not provide that the charter entities have “exclusive” or “sole” responsibility.  To interpret that language to divest DOE of its role in inspecting the charter school program as the school district’s partner under Education Law §3602-ee(10), or to so limit the scope of its inspection to make it superficial and meaningless, would conflict with the provision of Article 56 that gives the school district of location the authority to “visit, examine into and inspect” the charter school for the “purpose of ensuring that the school is in compliance with all applicable laws, ...” namely Education Law §2853(2-a), or in the case of charter schools formed by respondent’s Chancellor as charter entity, Education Law §2853(2)(New York Charter Schools Ass’n v. DiNapoli, 13 NY3d 120, 126 [2009]).  To harmonize these seemingly conflicting statutory provisions (McKinney’s Statutes §98), I interpret the language of Education Law §3602-ee(12) as having two effects.  First, it clarifies that in the case of a charter school, the charter entity is also responsible for ensuring that the charter school complies with the requirements of the grant, and can invoke the enforcement mechanisms under Article 56.  Second, it further clarifies that the charter entity is the “oversight agency” responsible for conducting at least one inspection under Education Law §3602-ee(10) in order to monitor, engage in programmatic review and enforce the operational requirements of the program.

Petitioners also argue that DOE’s proposed contract is illegal because Education Law §2854(1)(b) exempts charter schools from all other state and local laws, rules, regulations or policies governing public and private schools.  They claim that DOE lacks the authority to regulate such areas as professional development, meals, recruitment, and family engagement.[10]  Again, aside from general conclusory allegations, petitioners fail to demonstrate how the contract provisions they cite directly conflict with the provisions of Article 56 or with Education Law §3602-ee.  Moreover, petitioners’ argument ignores the fact that a charter school’s participation in the SUFDPK program is voluntary.  As petitioners would have it, a charter school could voluntarily apply for a grant of State funds but assert an exemption from all grant requirements based on Article 56 and still be entitled to such State funds.  The Legislature could not have intended such a result, which is both irrational and contrary to public policy.

Additionally, I note that when Success Academy NYC submitted its applications to DOE to participate in the SUFDPK program, it represented, as did the other applicants, that it could meet the requirements set forth in DOE’s RFP.  It now claims, after having been selected, that DOE lacks the authority to regulate many such program requirements because charter schools are exempt from all other State and local laws, rules regulations or policies governing public and private schools.  Had the Legislature intended that charter schools be exempt from the SUFDPK program requirements, it could have amended Article 56 to authorize charter schools to serve pre-kindergarten students and fund such programs under Article 56 and/or created a separate pre-kindergarten funding program for charter schools, but it did not do so.  Instead, the Legislature in Education Law §3602-ee(12) chose only to allow charter schools to participate in the SUFDPK program.

Petitioners also claim that the Legislature intended that pre-kindergarten students at charter schools are to be treated the same as charter school students, “namely, that pre-K students should benefit from the same unique academic offerings and initiatives provided by charter schools, which have been made possible only by freeing them from the extensive regulatory schemes that apply to traditional district schools.”  I disagree.  A prior Commissioner’s decision has previously determined that pre-kindergarten is a program not a grade (see Appeal of Boys Preparatory Charter School of New York, 55 Ed Dept Rep, Decision No. 16,788), and Article 56, which authorizes charter schools to serve students in kindergarten through grade 12, does not include pre-kindergarten program requirements.

Further, as noted above, the Legislature created a limited exception for charter schools to participate in the SUFDPK program.  While Education Law §3602-ee(12) provides for the applicability of Education Law §2854(2)(b), which governs the admission of students to the charter school, and Education Law §2854(3)(a-1), which provides limitations on the employment of uncertified teachers, it does not provide that every section of Article 56 applies to charter schools operating SUFDPK programs, but merely that the program’s “monitoring, programmatic review and operational requirements” cannot conflict with Article 56 of the Education Law.  Had the Legislature intended that Article 56 of the Education Law apply in its entirety, it could have so provided.

Petitioners also argue that DOE lacks the authority to audit their SUFDPK programs because Education Law §2854(1)(c) provides that a charter school located in New York City shall be subject to the financial audits of only the comptroller of the City School District of the City of New York.[11]  Under that provision, the New York City Comptroller, rather than the State Comptroller, is authorized to conduct fiscal audits of charter schools.  Accordingly, to the extent that the proposed contract includes provisions that conflict with Education Law §2854(1)(c) regarding the authority of the State Comptroller to conduct fiscal audits of charter schools located in New York City, those provisions cannot be enforced.

However, I find that DOE, as the school district partnering with the charter schools, is not prohibited from auditing petitioners’ SUFDPK programs to the extent necessary to ensure compliance with Education Law §3602-ee and that the public funds disbursed pursuant to DOE’s grant are properly spent in accordance with petitioners’ approved budget.  I find, therefore, that DOE, as a school district partnering with charter schools, has authority under Education Law §3602-ee(10) to inspect and therefore conduct audits of the SUFDPK program.  The SUFDPK program is a specific State-funded grant program, not governed by Article 56 of the Education Law, and DOE’s assertion of authority to audit the program does not conflict with Article 56.

With respect to the standard procurement provisions in DOE’s proposed contract, i.e., insurance, curriculum ownership, records retention, and subcontractor restrictions, such provisions only apply to the extent they are not inconsistent with Education Law Article 56 and petitioners have failed to demonstrate any such inconsistency.  Petitioners merely cite the provisions in the proposed contract to which they object and include a short parenthetical description of each such provision.

Finally, with respect to Article 38 of the proposed contract, the prevailing wage provision, the Court of Appeals has determined that the prevailing wage provision of the State’s labor law does not apply to charter schools (see New York Charter School Ass’n v. Smith, 15 NY3d 403, 914 NYS2d 696 [2010]).  Accordingly, DOE cannot impose such a requirement.

I have considered the parties’ remaining contentions and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

END OF FILE

*The following individuals are also listed as petitioners: Susana Taveras, individually and on behalf of her son, K.R.R., Jesus Hernandez, individually and on behalf of his daughter, L.N.H.,  Tsuri Benhorin, individually and on behalf of his son, L.B., Slawomir Brzozowski, individually and on behalf of his son, G.B., Pierre Delsoin, individually and on behalf of his daughter, E.C.D.P., Said Dib, individually and on behalf of his son, S.R.D., Fatoumata Haidara, individually and on behalf of her daughter, A.H., Alimatou Kaba, individually and on behalf of her daughter, T.C., Ebony Langhorne, individually and on behalf of her son, M.C., Joseph Luders, individually and on behalf of his daughter, R.L., Jackie Martineau-Ngoyi, individually and on behalf of her daughter, L.A.T., Ana Minaya, individually and on behalf of her daughter, A.W., Beverly Persad, individually and on behalf of her daughter, R.P., Lovely Pierre, individually and on behalf of her son, N.P., Nicholson Pierre, individually and on behalf of his son, N.P., Sarah Polanco, individually and on behalf of her daughter, A.C., Milagros Rodriguez, individually and on behalf of her daughter S.R., Nerita Sewell, individually and on behalf of her son, S.S., Michael Toney, individually and on behalf of his daughter, A.T., Richard Vargas, individually and on behalf of his son, D.B.V., Jamie Viera, individually and on behalf of her daughter, R.V., Nicole Wilson, individually and on behalf of her daughter, A.D., Rhodesha Wise, individually and on behalf of her son, A.C., and Success Academy Charter Schools – NYC on behalf of Success Academy Charter School – Harlem 1, Success Academy Charter School – Cobble Hill, and Success Academy  Charter School – Williamsburg.