Decision No. 13,443

(June 29, 1995)

SOBOL, Commissioner.--Petitioners challenge respondent's alleged amendments to a shared decisionmaking plan. The appeal must be sustained in part.

Petitioners are a collective bargaining association representing teachers in the Brookhaven-Comsewogue Union Free School District, its president, and a member of the district's shared decisionmaking team, respectively. Pursuant to 8 NYCRR 100.11, the Board of Education of the Brookhaven-Comsewogue Union Free School District ("respondent") adopted a shared decisionmaking plan on November 1, 1993. On or about September 8, 1994, a teacher building team member from the Clinton Avenue Elementary School was involuntarily transferred to a different building for the 1994/95 school year.

On September 19, 1994, the Clinton Avenue Building Team wrote to the superintendent informing him that a member of the team was no longer on staff and asking that the district-wide committee assist in determining whether or not that teacher could be replaced. The committee met on October 12 and 26, 1994. Since the committee was unable to reach consensus, it referred the matter to an outside facilitator. However, on November 7, 1994, respondent passed two resolutions pertaining to the district's plan. The first disbanded the district-wide committee. The second resolution provided a mechanism for the filling of vacancies that are caused by the involuntary transfer of a building team member. This appeal ensued.

Petitioners allege that respondent improperly amended the district's plan by adopting the above-described resolutions. Respondent contends that its resolutions did not amend the plan. Respondent also argues that even if the resolutions are deemed to be amendments, such amendments were adopted only after full compliance with 8 NYCRR 100.11.

Taking each resolution in turn, the first resolution disbanded the district-wide steering committee for the 1994-95 school year. In support of its action, respondent cites a Commissioner's memorandum dated April 1992 which contains this question and answer:

There is no express or implied requirement in the regulation that the district-wide committee continue to exist once the plan is adopted by the board. Given the guidance provided in the April 1992 memorandum, I cannot find respondent's action improper as a matter of law. Thus, I find that respondent was authorized to disband the committee. However, I note that in the district plan, a copy of which is attached as an exhibit to the petition, the district-wide committee was given certain responsibilities. Therefore, respondent should examine its plan to ensure that the discontinuance of the committee for the 1994-95 school year does not conflict with the plan's provisions.

The second resolution adopted by respondent provides:

Respondent contends that this language is not an amendment to the plan within the meaning of the shared decisionmaking regulation (8 NYCRR 100.11) and that the resolution was merely intended to effectuate the existing provisions of the plan. Respondent further argues that even if the resolution were deemed an amendment, it has complied with the regulation. An examination of the plain language of the resolution reveals that it obviously amends the district plan with respect to involuntary transfers. While the original plan did not address the issue of involuntary transfers, it did discuss the replacement of building team members. Under it, replacement was authorized only in the event of multiple vacancies that result in a constituent group having no representatives on a building team. Since there is no evidence in the record that the teacher's involuntary transfer left the Clinton Avenue Building Team without teacher representatives, it appears that under respondent's resolution, petitioners would have been permitted to replace a member on a building team, while respondent's original plan would have not provided for that result.

Moreover, '100.11 requires that any amendment of a shared decisionmaking plan must be developed and adopted in the same manner as the original plan. Therefore, a board of education must consult with the designated representatives and seek their endorsement of any amendments. The facts in this case simply do not support respondent's contention that this amendment was adopted at a public meeting after consultation with and full participation by the representatives designated by the shared decisionmaking regulation. Rather, it appears that a dispute arose when an involuntary transfer occurred. When the designated representatives could not reach agreement, respondent unilaterally passed the resolution. There is no record evidence that respondent consulted with the designated representatives concerning the amendment or sought their endorsement.

Since I find that the resolution by respondent is an amendment to the plan, and because it does not appear that the amendment complied with the regulation, respondent's resolution is declared invalid.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent fully consult with its designated representatives concerning the proposed amendment to the district plan and seek their endorsement. Upon adoption of any amendment to the district plan, respondent must forward the amendment to the State Education Department in accordance with 8 NYCRR 100.11.

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