Decision No. 12,606

(December 11, 1991)

Edward T. Robinson, III, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioners, residents of the Oyster Bay-East Norwich Central School District, appeal from respondent board's adoption of a plan for school reorganization. The appeal must be dismissed.

Neither party has presented a clear picture of the pertinent facts involved in this matter. However, it appears that the elementary school of the Oyster Bay-East Norwich Central School District (K-4) is overcrowded. Respondent's middle school is composed of grades 5 through 8, and its high school contains grades 9 through 12.

To address the overcrowding in the elementary school, respondent requested its superintendent to develop recommendations. Respondent also established an advisory committee to examine the problem. The voters rejected a proposal to reopen a closed elementary school building to alleviate the overcrowding on May 23, 1990. A proposal seeking approval of a bond issue to fund expansion of the middle school was also defeated in a vote held on January 30, 1991.

At its regular meeting on March 19, 1991, respondent adopted a resolution authorizing the use of proceeds derived from the sale of an unused school building to purchase and construct five modular classrooms at the middle school. The resolution further provided that, upon completion of the expansion of the middle school, the fourth grade classes would be transferred to the middle school. This appeal ensued. Petitioners requested that I stay respondent's implementation of the reorganization plan pending a determination on the merits of this appeal. On May 16, 1991, I denied that request.

Petitioners ask that I set aside the reorganization plan as arbitrary and capricious and without a rational basis. It is well settled that a decision concerning school reorganization and the closing of school buildings is within the discretion of the board of education, and will not be set aside unless it is shown to lack a rational basis (Matter of Older v. Bd. of Ed., 27 NY2d 333; Matter of DeVito v. Nyquist, 56 AD2d 159, aff'd 43 NY2d 681; Appeal of Restive, 26 Ed Dept Rep 504; Matter of Gang, et al., 23 id. 5). Petitioners bear the burden of demonstrating clearly that respondent's action is arbitrary, capricious or contrary to sound educational policy (Appeal of Malang, 26 Ed Dept Rep 134; Matter of Lifshey, et al., 19 id. 105). I find that petitioners have failed to meet their burden of proof.

Petitioners do not dispute that the elementary school building is overcrowded and that respondent's decision to expand the middle school and move the fourth grade to that building is in response to that overcrowding. Petitioners contend, however, that this problem would be better addressed if respondent opted to move the seventh and eighth grades to the high school. Petitioners contend that, under such a proposal, there would be no need to expand the middle school. Respondent has apparently considered and rejected this proposal, because it believes that a middle school is better equipped to address the particular needs of seventh and eighth grade students. The issue, however, is not whether petitioners' proposal is any better than respondent's, but whether respondent's plan has a rational basis (Appeal of McNerney, et al., 28 Ed Dept Rep 250). Based upon the record before me, I find that it does and I decline to substitute my judgment for that of the duly elected school board.

Petitioners also contend that respondent lost its discretionary power to reorganize the district by reason of voter rejection of the 1990-91 budget, which contained an allocation of funds to reopen an abandoned elementary school and voter rejection of the January 1991 bond referendum. Again, petitioners have failed to meet their burden; they offer no statute, regulation or court decision which supports their contention. I must, therefore, reject it.

Petitioners further contend that respondent was arbitrary and capricious in adopting its reorganization plan since that plan was not recommended by either the superintendent or the advisory committee. However, the ultimate decision maker in adopting a reorganization plan is the board of education, and the approval of the superintendent or an advisory committee is not required (Appeal of Orzechowski, et al., 27 Ed Dept Rep 448; Appeal of Malang, supra; Matter of Bosco, et al., 19 id. 557).

Petitioners also maintain that the manner in which respondent adopted its reorganization plan was improper because respondent did not allow members of the public to speak on the issue before it was adopted. Respondent maintains, however, that the issue of school reorganization was discussed at board meetings prior to adoption of the plan. Respondent further maintains that the public was permitted to speak on the issue after the board had voted. There is no requirement in law that a board conduct a hearing upon any particular subject or grant to any person the right to be heard (Matter of Kramer, 72 St Dept Rep 114). Moreover, a board may limit public discussion on an issue until after action has been taken on that issue (Matter of Thomas, et al., 10 Ed Dept Rep 108). Although such a procedure is not invalid, boards should attempt to accommodate the desire of the public to be heard. Such advice is equally applicable to respondent here.

Finally, petitioners maintain that respondent is not authorized to purchase modular classrooms without voter approval. Respondent contends that it has the authority to make such a purchase without voter approval pursuant to Education Law '1804(6)(c). The record indicates that pursuant to Education Law '1804(6)(c), respondent board sold an unused school building on January 24, 1991. In connection with the use of the proceeds of such a sale, Education Law '1804(6)(c) provides in pertinent part:

The statute thus clearly authorizes respondent to use the proceeds from the sale of the unused school building for the construction and purchase of additional classroom space. Only if the expected cost of the construction of the modular units is in excess of the sale proceeds, would voter approval be required (Op State Compt. 81-105).

THE APPEAL IS DISMISSED.

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