Appeal of FRANK BARNEY, PATRICIA GODREAU, ROBERT LAVOIE and SUZANNE MCLEAN from action of the Board of Education of the St. Regis Falls Central School District and Superintendent Patricia A. Dovi, regarding shared decision-making.

Decision No. 15,165

(January 31, 2005)

James R. Sandner, Esq., attorney for petitioners, Mary Scalise Perillo, Esq., of counsel

Silver and Silver, attorneys for respondents, Andrew W. Silver, Esq., of counsel

MILLS, Commissioner.--Petitioners, employees of the St. Regis Falls Central School District ("district") and members of the district�s Shared Decision-Making Committee ("SDM Committee"), contend that the district�s superintendent and board of education ("respondents") violated the district�s shared decision-making plan ("plan") and failed to comply with the Commissioner�s regulations by not including the SDM Committee in staffing decisions. The appeal must be dismissed.

Section 100.11 of the Commissioner�s regulations requires school districts to develop and adopt a district plan for the participation by teachers and parents with administrators and school board members in school-based planning and shared decision-making. Under the district�s plan, adopted on December 13, 1993, the list of educational issues subject to shared decision-making may include, but is not limited to, staffing needs, along with a dozen other issues.

Petitioners contend that from the plan�s adoption until July 2003, the SDM Committee participated by giving input in the hiring of school personnel. Respondents admit that, on occasion, the SDM Committee has participated in hiring to a limited extent. Petitioners assert that since July 2003, the SDM Committee has not been allowed to participate in the interview and selection process for numerous staff positions filled by respondents.

On December 1, 2003, petitioners Barney and Godreau met with the superintendent regarding the exclusion of the SDM Committee from staffing interviews. According to petitioners, the superintendent indicated that individual SDM Committee members would need training to participate in interviews.

Petitioners assert that respondents� exclusion of the SDM Committee from the interview and selection process for new staff is a continuing wrong, is arbitrary and capricious, violates the district�s plan, and fails to comply with �100.11. Petitioners request that I order respondents to comply with the regulation and plan.

Respondents contend that the appeal is untimely and that petitioners have failed to demonstrate a clear legal right to the relief sought. Respondents assert that the board of education has sole authority for personnel decisions. They contend that neither �100.11 nor the plan requires participation by the SDM Committee in the hiring process. They also state that they are contemplating amending the plan to allow the SDM Committee members to participate, to some extent, in the hiring process and to require training of Committee members.

An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16). Respondents argue that the appeal is untimely because it was not commenced until March 1, 2004, more than seven months after July 2003 when the SDM Committee alleges it was denied participation in the selection and hiring process. Respondents argue that even if the operative date is the December 1, 2003 meeting with the superintendent, the appeal is still untimely because it was not commenced until three months after that meeting.

Although petitioners did not commence the appeal within the 30-day period, respondents� alleged failure to permit the SDM Committee to participate in staffing needs in accordance with its shared decision-making plan, if unlawful, is a continuing wrong (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155; Appeal of Fitch, 34 id. 486, Decision No. 13,391). Therefore, I decline to dismiss the appeal as untimely.

Petitioners acknowledge that pursuant to Education Law �1709, hiring of employees is within the purview of the board of education and is not a delegable responsibility (Appeal of Lawrence Teachers� Assoc., 39 Ed Dept Rep 119, Decision No. 14,190). Petitioners argue, however, that in the plan, "staffing needs" is an educational issue subject to shared decision-making and nothing in the Education Law precludes respondents from allowing the SDM Committee to provide input in the hiring process, including the interviewing and selection of candidates.

Although respondents previously permitted the SDM Committee to participate in the hiring process by giving input in the interview and selection process for personnel, nothing in the plan or �100.11 mandates that respondents continue to afford petitioners that level of participation. Notably, the plan is silent on how the SDM Committee should participate in addressing the undefined issue of "staffing needs." I find, therefore, that petitioners have failed to establish a violation of the plan for failing to include the SDM Committee in interviews and selection of candidates.

Respondents indicate that they are contemplating amending the plan to allow the participation of the SDM Committee in the hiring process and to mandate training. Given the vagueness of the current plan, and the disagreement of the parties, I encourage them to work together to resolve these issues in any subsequent plan, which may be amended in accordance with �100.11.

THE APPEAL IS DISMISSED.

END OF FILE

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