Appeal of MAUREEN BOWERS from action of the Board of Education of the City School District of the City of Kingston and Arthur W. Stellar, Superintendent, regarding shared decisionmaking.

Decision No. 14,216

(September 30, 1999)

Shaw & Perelson, LLP, attorneys for respondents, Susan G. Whiteley, Esq., of counsel

MILLS, Commissioner.--Petitioner is a resident of the City School District of the City of Kingston, and has served on the District Leadership Team created under the district's "Master Plan for School Improvement." Petitioner raises numerous questions regarding the functioning of the District Leadership Team and the district's compliance with Commissioner's Regulation "100.11. The appeal must be dismissed.

The Master Plan was created as required by Commissioner's Regulation "100.11 in 1994, and reviewed in 1996. Article XI of that document creates a District Leadership Team consisting of nearly 30 members. Among its functions were serving as a sounding board for concerns regarding improvement initiatives, reviewing school improvement initiatives, and serving as the editorial and revision team for the Master Plan for purposes of the biennial review required by "100.11(f). It appears that the district's assistant superintendent acted as the team's facilitator and secretary, and that the group met fairly regularly prior to May 1997.

Petitioner alleges that the District Leadership Team has failed to function as she believes it is required to function under the Master Plan. She seeks declaratory relief that the superintendent and board of education are out of compliance with their own Master Plan, and out of compliance with Commissioner's Regulation "100.11. She further asks that I compel the board to seek the services of the New York State School Boards Association in the development and maintenance of a policy manual "with continued monitoring of the local board's conduct."

Respondents generally deny any wrongdoing, and deny any failure to comply with "100.11. They also raise a number of defenses and affirmative defenses including inadequate service of process, failure to demonstrate a clear legal right to the relief requested, untimeliness, demand for an improper declaratory ruling or advisory opinion, and my lack of jurisdiction or authority to entertain or grant certain forms of relief demanded.

I find the appeal untimely. In her reply, petitioner states that her petition is based upon her oral questions to respondent Stellar on December 3, 1998, and the superintendent's written response dated December 11, 1998. In pertinent part, the superintendent wrote:

I have reviewed the material you provided me at the Kingston Districtwide Parents Council Meeting. As anticipated, there is no necessity to have a districtwide leadership team, except every two years prior to sending the appropriate paperwork to the state.

As you are also probably aware, this particular document is woefully dated and inaccurate. It has limited practical value, except, perhaps, to serve as background for a totally new plan. Of course, such a plan would take a totally different form and would be aligned with the state standards.

Commissioner's Regulation "275.16 provides that an appeal must be instituted within 30 days "from the making of the decision or the performance of the act complained of." By its own terms, the superintendent's letter of December 11, 1998, was neither a decision nor an act, but is a mere expression of opinion. A mere expression of opinion, whether correct or incorrect, cannot provide the jurisdictional basis for an appeal pursuant to Education Law "310.

Although petitioner denies that she is seeking relief with respect to the revision of the Master Plan adopted by the board on January 15, 1998, I can find no other discreet act or determination. By the terms of "100.11(e), any challenge to a board's failure to provide for consultation with, and the full participation of, all parties in the development of its plan must be commenced within 30 days after final adoption. This appeal commenced January 8, 1999, is therefore untimely, and must be dismissed.

Following the biennial review, petitioner engaged in extensive correspondence with the superintendent and other administrators regarding her view of the use of the district-wide leadership committee, leading up to the

 

exchange with the superintendent in December 1998. If anything, this correspondence must be viewed as an attempt to modify the views of the superintendent, and to get him to reconsider his position. Such a request for reconsideration does not extend the time in which to commence an appeal (Appeal of Fullam, et al., 38 Ed Dept Rep 227, Decision No. 14,021; Appeal of Ytuarte, 36 id. 238, Decision No. 13,172; Appeal of Goodman, 35 id. 93, Decision No. 13,477).

Although I am constrained to dismiss the appeal as untimely, I must comment on certain matters raised in this record. It appears that the district's response to the State Education Department in January 1998 consisted largely of evaluations made in each of its 13 school buildings, while there does not appear to be any unified, district-wide response. It appears that prior to the revision of the Master Plan in January 1998, administrators contacted only selected members of the District Leadership Team, who worked on revisions, but that the full team was not engaged in this procedure.

The record contains a memorandum dated January 23, 1998, to the District Leadership Team from the assistant superintendent, its facilitator and secretary. This memorandum was issued only eight days after the board's adoption of the revised Master Plan on January 15, 1998. The record before me indicates no revisions to Article XI of the Master Plan, i.e., no changes to the composition or duties of the District Leadership Team, including its editorial responsibilities for future revisions of the Master Plan. Nevertheless, the assistant superintendent indicates that a "reconstructed district leadership team" will have as its charge: "Oversight committee for Middle States Accreditation" and "Oversight Committee for revised Standards of Excellence." The memorandum does not indicate whether these duties are in addition to those continued in the Master Plan or are to replace those duties, why there was no amendment to Article XI in the board's revised Master Plan only days before, or whether this change or addition of duties was made by the board or by the assistant superintendent. I find it disturbing that the superintendent is of the opinion that a district-wide team is unnecessary, except when a revision of the Master Plan is required every two years by Regulation. The evidence submitted by petitioner, however, is insufficient to draw any conclusion as to whether or not these matters, by themselves, would affect the district's compliance with "100.11.

Although petitioner has not challenged the composition of the District Leadership Committee (cf.Appeal of Sadue - Sokolow, 39 Ed Dept Rep ______, Decision No. 14,155, and cases cited therein), I further note that the composition of the District Leadership Team, as set out in the Master Plan, includes two board members. Since the district's original Master Plan was adopted, the inclusion of board members on such teams has been held improper (Appeal of Chester, 35 Ed Dept Rep 512, Decision No. 13,616; Appeal of United Federation of Teachers, 34 id. 528, Decision No. 13,403). The district's upcoming biennial review should correct this situation.

Because of the numerous questions raised by petitioner concerning shared decisionmaking in this district, I will direct my Office of Regional School Services to contact the parties to attempt to resolve the issues raised by petitioner that are not addressed in this decision.

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

 

THE APPEAL IS DISMISSED.

END OF FILE

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