Decision No. 13,391

(April 5, 1995)

James R. Sandner, Esq., attorney for petitioner Tice, John H. Jurgens, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal respondent's implementation of a shared decisionmaking plan. The appeals must be sustained in part.

In separate appeals, petitioner Dorothy Fitch, President of the Program for Early Rapid Learners PTA (PEARLS PTA), and petitioner Walter Tice, President of the Yonkers Federation of Teachers, challenge the implementation of a shared decisionmaking plan by the Board of Education of the City School District of the City of Yonkers ("respondent"). The appeals are consolidated for purposes of decision.

In 1989, respondent established the Education 2000 Yonkers Steering Committee ("Education 2000 committee") to develop a plan to restructure its schools and participate in the New York State Education Department's Excellence and Accountability Pilot Program (EAP). The Education 2000 committee consisted of parents, teachers and administrators.

Subsequent to the adoption of the shared decisionmaking regulations (8 NYCRR 100.11), respondent formed the Subcommittee of Shared Decision Making ("SDM subcommittee") within the Education 2000 committee. Although the exact membership is in dispute, respondent states that the SDM subcommittee consisted of eight teachers, five building administrators, five parents, two business community representatives, one university representative, a representative from the New York State Education Department, a student representative and a trustee from respondent board. The SDM subcommittee was charged with developing a district plan for school-based planning and shared decisionmaking to comply with the regulation.

Although the exact number is also in dispute, respondent states that the SDM subcommittee held approximately seven meetings and two community forums. In October 1993, petitioner Fitch communicated her concern to respondent that parent members were not appropriately chosen or adequately represented on the SDM subcommittee. On December 22, 1993, the SDM subcommittee issued a draft plan. On January 5, 1994, the draft plan was forwarded to the Education 2000 committee with notice that there was a lack of consensus on the representation and selection issues. The Education 2000 committee then sent the plan to a "Summit" committee.

The Summit committee was formed for the benefit of the Education 2000 pilot schools and was composed of a board member, the superintendent and the presidents of the collective bargaining units, as well as the president of the Yonkers Council of PTAs. The Summit committee was also unable to reach agreement on the representation issue and sent the plan to respondent with three options. Respondent met on January 24, 1994 to consider the plan. Respondent merged options 2 and 3, effectively adopting the basic structure of option 2 but adding more parent members, as recommended in option 3. The amended plan was adopted on February 2, 1994 and submitted to the State Education Department on March 16, 1994. The appeal by petitioner Tice was commenced on March 2, 1994 and the appeal by petitioner Fitch was commenced on August 18, 1994. On December 9, 1994, petitioner Tice requested an interim order pending a determination on the merits of the appeal. That request was denied on January 6, 1995.

Petitioner Fitch alleges that respondent's method of selecting parent representatives was inappropriate and seeks a determination that respondent developed a shared decisionmaking plan without consultation and full participation of parent members. Petitioner Fitch also seeks a determination setting the plan aside and requiring respondent to provide notice and information on shared decisionmaking to parents. Petitioner Fitch further alleges violations of the Open Meetings Law and the Freedom of Information Law. Petitioner Tice seeks a determination that respondent violated the shared decisionmaking regulation, that teacher representation in the shared decisionmaking process is insufficient and requests that the matter be remanded back to respondent for compliance with the regulation.

Respondent raises several procedural objections with regard to the petition submitted by petitioner Fitch, including failure to join the Yonkers Council of PTAs as a necessary party to the proceeding and untimeliness. Respondent also contends that it acted properly in its adoption of the shared decisionmaking plan.

Before reaching the merits, I will address the procedural issues. Respondent contends that because it worked primarily with the Yonkers Council of PTAs on the selection of parents to participate in the shared decisionmaking process and petitioner Fitch disputes the method of parent selection, the appeal should be dismissed for failure to join a necessary party. I find that petitioner's failure to join the Yonkers Council of PTAs is not dispositive of the appeal. The issue before me is whether respondent acted appropriately in implementing shared decisionmaking. Because the Yonkers Council of PTAs has no legal right that would be adversely affected if the relief sought in this appeal were granted, it is not a necessary party (Appeal of Young, 26 Ed Dept Rep 152; Appeal of Mitzner, 32 id. 15). Therefore, I decline to dismiss the appeal on that basis.

Respondent also contends that petitioner Fitch's appeal is untimely because it was not commenced within 30 days from the date respondent determined that the PEARLS PTA had no right to representation on respondent's SDM subcommittee. Respondent's final correspondence with petitioner Fitch on the issue of representation was dated November 10, 1993, and the plan was adopted on February 2, 1994. As a response to the claim of untimeliness, petitioner Fitch contends that as a prose petitioner, she found the drafting of a petition complex and time consuming. Petitioner Fitch also asserts that she didn't have final authority from her organization to proceed with the appeal until the general membership voted.

Section 275.16 of the Regulations of the Commissioner of Education requires an appeal to be instituted within 30 days after the making of the decision or performance of the act complained of, provided that the Commissioner may excuse a delay in commencing an appeal for good cause shown (Application of Cox, 27 Ed Dept Rep 124). In this matter, I find that respondent's failure to include petitioner Fitch and the PEARLS PTA in the shared decisionmaking process is a continuing wrong, and, therefore, decline to dismiss the appeal for untimeliness (Appeal of Tropia, 32 Ed Dept Rep 606; Appeal of Nettles, 31 id. 437; Appeal of Sroka, 31 id. 513).

With respect to the merits, the shared decisionmaking regulation (8 NYCRR 100.11) provides, in pertinent part:

The record before me indicates that respondent's handling of shared decisionmaking has been flawed. It appears that neither the manner in which parent members were selected nor the process upon which the plan was adopted conforms with the letter or spirit of the regulation.

Specifically, petitioner Fitch alleges that her organization and other PTAs were excluded from the process because respondent chose to consider only the Yonkers Council of PTAs as the parent representative in the shared decisionmaking process and did not solicit membership from other existing school-related parent organizations, nor was the Council authorized to appoint parent members by the PTA member units. The record supports her allegations. The regulation defines a school-related parent organization as:

In this case, respondent did not reach out to individual parent organizations, but instead utilized an umbrella organization, the Yonkers Council of PTAs, that was a member of the Education 2000 committee. While the use of an umbrella organization of school-related parent organizations is not inappropriate under the regulation, the record in this case indicates that this particular organization was not acting with the authority of its member units with regard to shared decisionmaking and parent selection. The Yonkers Council of PTAs is a group of individual PTAs in a district. Petitioner submits exhibits that state that the Council is precluded from taking action involving member units without their consent (National PTA Handbook, page 23), and that in this case, petitioner did not authorize the Council's actions with regard to shared decisionmaking. While respondent may have believed that the Yonkers Council of PTAs was adequate to represent parental interests on the Education 2000 committee, it was nevertheless not authorized to represent the school-related parent organizations in the development of a shared decisionmaking plan. I, therefore, find that respondent violated that part of 8 NYCRR 100.11 that requires the involvement of parents from school-related parent organizations and sustain that portion of the appeal.

Petitioner Tice contends that respondent failed to collaborate with the SDM subcommittee, as required by the regulations, and that the final plan adopted by respondent has insufficient teacher representation. Regarding teacher representation, I note that the regulation requires the district plan to be developed in collaboration with a committee composed of the superintendent of schools, administrators, teachers and parents. The exact number of representatives on the committee is not designated in the regulation and there is no requirement that the representation be equal. However, I note that the intent of the regulation is that all constituencies participate equitably. Likewise, the regulation doesn't require numerical equivalence between the mandated representatives in a shared decisionmaking plan. Therefore, petitioner Tice's claim regarding equal representation must be dismissed.

However, the record before me indicates that the procedure respondent used to adopt the shared decisionmaking plan did not conform with the regulation. The development of a shared decisionmaking plan was delegated to an existing entity with other membership criteria and another purpose. The process whereby the SDM subcommittee initially developed the plan, referred the plan to the Summit committee to resolve disputed issues, and that committee's eventual return of the plan to respondent board when agreement could not be reached on representation was improper. Respondent was instead obligated to bring the representation and other disputed issues to petitioners and other designated representatives in a manner consistent with the shared decisionmaking regulation. That regulation provides, in pertinent part, that a plan shall be adopted only after "consultation with and full participation of" designated representatives (See 8 NYCRR 100.11[d][1]). I note, however, that while respondent was required to seek the endorsement of designated representatives, it is not required under the regulation to obtain their endorsement (Appeal of Passino, 34 Ed Dept Rep 6). The record indicates that respondent failed to collaborate with designated members on representation and other disputed issues. Therefore, respondent must review that part of the plan that it unilaterally adopted and present that portion of the plan to the newly constituted shared decisionmaking committee.

Petitioner Fitch also raises claims under the Open Meetings Law and Freedom of Information Law (FOIL). However, I lack jurisdiction to address these claims. The proper forum for addressing such claims is State Supreme Court (Public Officers Law '107; Appeal of Martin, 32 Ed Dept Rep 381; Appeal of Mitzner, 32 id. 333; Application of Eisner, 31 id. 517).

I have reviewed the parties' remaining contentions and find them without merit.

THE APPEALS ARE SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent submit the plan which it previously sent to the State Education Department to the District Compact Committee that includes parent members selected by school-related parent organizations or by an umbrella organization of school-related parent organizations with the authorization of member units consistent with this decision. After fully consulting with the committee and seeking its endorsement of the plan, the board of education must readopt the final plan and forward it to the State Education Department for review in accordance with 8 NYCRR 100.11.

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