Decision No. 14,190

(August 17, 1999)

CATE, Acting Commissioner.--Petitioner appeals the adoption of a revised shared decisionmaking plan by the Board of Education of the Lawrence Union Free School District ("respondent") on March 17, 1998. The petition must be dismissed.

Petitioner, the Lawrence Teacher’s Association ("LTA"), is the exclusive collective bargaining organization representing teachers in respondent’s district. Petitioner contends that respondent made two objectionable changes in its shared decisionmaking plan without returning the proposed changes to the District Steering Committee ("committee") for reconsideration. Petitioner alleges that respondent’s failure to consult with the committee before making changes to the plan was arbitrary and capricious and violated both "100.11 of the Commissioner’s regulations and the district’s plan. Petitioner requests that I annul respondent’s adoption of the plan and order respondent to review the district’s shared decisionmaking plan with the meaningful participation of petitioner and all stakeholders.

Respondent asserts that the petition is untimely, improperly served and moot, and maintains it did not violate the district’s plan or the Commissioner’s regulation.

I will first address the procedural issues. Respondent asserts that the petition is moot since petitioner admits that only the board of education has the right to change the plan. The Commissioner will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Schuler, 37 Ed Dept Rep 512, Decision No. 13,915). However, since the petition concerns not the right of respondent to make changes, but rather whether respondent properly consulted with the committee, I will not dismiss the appeal as moot.

Respondent also asserts that the appeal is untimely. Section 100.11(e)(1) of the shared decisionmaking regulation provides in pertinent part:

Respondent adopted the plan at its March 17, 1998 meeting, thirty days from which would have been April 16, 1998. However, the petition was not served until April 20, 1998. Citing Appeal of Greenburgh Eleven Federation of Teachers (34 Ed Dept Rep 606, Decision No. 13,425), in which the Commissioner dismissed the petition as untimely under "100.11(e), respondent argues that this petition is untimely because the 30-day time limit in "100.11(e)(1) is absolute and there is no provision permitting the Commissioner to extend the time to file an appeal concerning shared decisionmaking.

However, I find that "100.11(e)(1) must be read in conjunction with the regulations governing appeals under Education Law "310. Under 8 NYCRR "275.16, an appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown. It would be contrary to the interests of justice to deny petitioner an opportunity to demonstrate good cause for filing a petition more than thirty days after the adoption of the plan where such opportunity exists under "275.16, and Greenburgh does not require otherwise. Accordingly, I find that the appeal is not automatically untimely under "100.11(e)(1).

However, petitioner has nonetheless failed to comply with "275.16. First, "275.16 requires that the reasons for the failure to file within thirty days be set forth in the petition. Petitioner’s excuse is not set forth in the petition, but rather in a reply affidavit from its counsel dated April 24. Secondly, petitioner fails to demonstrate good cause. Counsel for petitioner avers that papers were given to a service company on Friday, April 17 and service was allegedly attempted on two board members that day. He avers further that district schools were closed from April 13-17 because of the Easter recess and thus service was not made until Monday, April 20. However, petitioner offers no proof that district offices were indeed closed during the vacation week. Nor is there any proof that service was actually attempted on any board member or at the district offices. Thus, petitioner has failed to demonstrate good cause for the delay.

In addition, service was not personally made on the district clerk, a member of respondent board or the superintendent as required by 8 NYCRR "275.8(a), which provides, in pertinent part:

Two affidavits of service are attached to the petition. One states that the petition was served on April 20 on a Mr. Scotto, a neighbor of Rosemary Scala, the district clerk. The other states that a petition was served April 20 on "Jimmy" who apparently is the manager of the country club at which Frank Argento, a member of respondent board, resides. Neither affidavit states that any prior attempts to effect service were made before leaving the petition with others, or that service was attempted prior to April 20. Since petitioner failed to effect personal service of the petition, the appeal must be dismissed.

Turning to the merits, 8 NYCRR "100.11 requires each board of education to develop and adopt a district plan for school-based planning and shared decisionmaking. Such district plan shall be developed in collaboration with a committee composed of the superintendent of schools, administrators, teachers and parents (8 NYCRR "100.11[b]). Furthermore, the plan may only be adopted "after consultation with and full participation by" these designated representatives and after "seeking endorsement of the plan" by the designated representatives (8 NYCRR "100.11[d][1]). In addition, "100.11(f) provides, in pertinent part:

Stephen Clements, petitioner’s president, avers that during several committee meetings, all stakeholder groups had the opportunity to discuss revisions to the present plan, after which the final plan was accepted by those groups and submitted to respondent. Petitioner asserts that respondent subsequently made two significant changes to the plan, both of which had been rejected by the committee. First, respondent increased the number of parents on each shared decisionmaking team to equal the number of teachers. According to Mr. Clements, the committee approved the addition of a parent to the Early Childhood Center team, but rejected the addition of a parent to the Middle School team. Second, respondent added a line under the "staff selection" provision, which provides that the shared decisionmaking team will determine the process for staff selection "consistent with guidelines established by the District." According to Mr. Clements, the committee unanimously rejected respondent’s proposal to eliminate hiring from the list of items subject to shared decisionmaking.

Petitioner maintains that respondent made the two changes at its March 17, 1998 meeting without consulting the committee. It also asserts that respondent’s transmittal letter to the Commissioner, dated March 23, 1998, is misleading. Respondent stated in that letter that ". . . the Board approved all of the recommendations and also approved two items which had been addressed by the committee, but which did not achieve consensus support by that group." Petitioner asserts that the committee specifically rejected the two items. Petitioner alleges that respondent failed to follow its shared decisionmaking plan with regard to these matters and seeks an order rescinding respondent’s actions of March 17.

Respondent asserts that petitioner is attempting to retain a proportionate advantage in each building level team, and to continue to utilize that advantage in the staff selection process. Respondent contends that there was no consensus on either of the two issues at a January 27, 1998 committee meeting, and that it has authority to make these changes. Furthermore, it states that petitioner admits that it is technically the right of the board of education to change the plan. Respondent asserts that just as there was no consensus to change these issues, there was also no consensus to leave the plan as it was.

Respondent asserts that both the 1994 and 1996 shared decisionmaking plans submitted to and approved by the Commissioner provided under "Staff Selection" that the shared decisionmaking team "will determine the process for selection of candidates to be recommended to the Superintendent." Respondent contends that the teams went far beyond the "process" by actually screening and reviewing applications and selecting candidates for further consideration by the Superintendent. Furthermore, respondent maintains that since petitioner was disproportionately represented on the teams, petitioner exercised disproportionate weight in the selection process. Thus, through the two amendments, respondent sought to equalize parental representation on the building level teams, and to ensure that the hiring process became more district-wide, rather than school-wide.

A board of education must consult certain individuals when developing a plan for school-based planning and shared decisionmaking (8 NYCRR "100.11). The regulation, however, does not require the committee’s endorsement of the plan as a precondition for approval. The regulation simply requires that respondent seek the endorsement of the plan before its adoption. It is not required to obtain endorsement (Appeal of Passino, 34 Ed Dept Rep 6, Decision No. 13,214). There is also no requirement that all committee members agree to all aspects of the plan (Appeal of Council of Supervisors and Administrators, 34 Ed Dept Rep 536, Decision No. 13,404; Appeal of St. Victor, 33 id. 679, Decision 13,194).

There is no dispute that respondent has the authority to make changes to a recommended plan before submitting it to the Education Department. When respondent makes changes, however, the question becomes whether those changes are significant enough to require that the plan be returned to the committee for its endorsement. The disputed issues in this case concern the composition of the building level teams and the right of those teams to participate in the hiring process. A change in the composition of team members at the building level has been found to be a significant issue meriting further discussion by a planning committee (Appeal of United Federation of Teachers, 34 Ed Dept Rep 528, Decision No. 13,403; Appeal of Passino, supra).

The record indicates that at the January 27 and March 5 meetings of the committee, there was no consensus to act on the suggestion to add an additional parent to the Middle School team and thus, no change in the plan was made. However, the committee did recommend adding parents at Early Childhood Center school. Furthermore, while the record indicates that the committee understood that this issue was important to respondent, there is nothing in the record to indicate that respondent attempted to reach consensus with the committee or that it submitted its revised language to the committee. Because the appeal has been dismissed on jurisdictional grounds, I am constrained from remanding the plan in this instance. However, respondent is reminded that, in the future, it must actively seek the committee's endorsement and take all necessary steps to ensure that all regulatory requirements pertaining to the adoption of a shared decisionmaking plan are followed.

As for the issue of staff selection, respondent did not remove that responsibility from the building level teams; it merely added the provision that hiring be "consistent with guidelines established by the district." I note that hiring of employees is within respondent’s purview and is not a delegable responsibility (Education Law "1709). Thus, respondent’s clarification of the hiring process did not violate the shared decisionmaking process (See, e.g., Appeal of Kastberg et al., 35 Ed Dept Rep 208, Decision No. 13,518). However, I urge respondent to share its "guidelines" with the appropriate shared decisionmaking entities once they are established.

Finally, in an appeal to the Commissioner, petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Singh, 30 Ed Dept Rep 284, Decision No. 12,467). Petitioner offers no legal basis to support its claim that in submitting the plan to the State Education Department, respondent must include a statement that all provisions of the plan were not endorsed by all members of the committee (Appeal of St. Victor, supra).

THE APPEAL IS DISMISSED.

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