* Subsequent History: Matter of Bailey v Mills; Supreme Court, Albany County; Judgment dismissed stay request and petition to review; December 13, 2006. *

Appeal of SHANNON DEE BAILEY and NIKKI MAXWELL from action of the Board of Education of the Sullivan West Central School District regarding school closings.

Decision No. 15,318

(October 26, 2005)

Shaw & Perelson, LLP, attorneys for respondent, David S. Shaw, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the decision of the Board of Education of the Sullivan West Central School District (“respondent”) to close two of its elementary schools.  The appeal must be dismissed.

On June 2, 2005, respondent voted to close its Narrowsburg and Delaware Valley elementary schools.  This appeal ensued.  Petitioners’ request for interim relief was denied on June 30, 2005.

Petitioners allege that respondent failed to publish and post a notice of the proposed school closings in accordance with Education Law §402-a(3).  Petitioners also allege that a district advisory committee established by respondent did not consider the statutorily required criteria set forth in Education Law §402-a(2).  Petitioners also allege that respondent violated the Open Meetings Law.  Petitioners request that respondent’s decision to close the Narrowsburg and Delaware Valley elementary schools be annulled.

Respondent alleges that petitioners have failed to demonstrate a clear legal right to the relief requested and establish the facts upon which relief is sought.  Respondent contends that Education Law §402-a is not mandatory and does not require the actions demanded by petitioners.  Finally, respondent alleges that the Commissioner lacks jurisdiction to enforce the provisions of the Open Meetings Law.

Petitioners contend that respondent should have followed §402-a before deciding to close the schools.  Education Law §402-a is discretionary and identifies factors to be considered by a board only if it chooses to establish an “advisory committee on school building utilization to investigate the educational impact of such a closing” (Education Law §402-a[1]; Appeal of Patashnick, 39 Ed Dept Rep 236, Decision No.  14,225; Appeal of Seligman, et al., 31 id. 131, Decision No. 12,594).  The word “shall” as used in subsections (2) and (3) of §402-a regarding procedures must be read in context of the entire statute which makes those paragraphs applicable only where a board of education chooses to establish an advisory committee (Appeal of Seligman, et al., 31 Ed Dept Rep 131, Decision No. 12,594).

The record indicates that respondent established an advisory committee called the “CBC” to study financial and other potential solutions, including school closings, to address the excessive tax burden associated with maintaining programs and facilities.  Petitioners have not demonstrated that the committee established by respondent was an Education Law §402-a advisory committee.  The record is devoid of information as to when the committee was formed, specifics as to its charge and membership, and whether it prepared any kind of report or impact statement.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  Accordingly, I cannot find that respondent was obligated to follow the procedures outlined in §402-a.

Decisions about school district reorganization and the closing of school buildings are within the discretion of a board of education and will not be set aside unless they are shown to lack a rational basis (Appeal of Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Patashnick, 39 id. 236, Decision No. 14,225; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194).  Pursuant to Education Law §1709(3) and (33), a board of education has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein.  In such cases, a board’s discretion is broad (Matter of Older, et al. v. Bd. of Educ., 27 NY2d 333; Appeal of Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194).  Accordingly, a board’s decision to reorganize its schools will not be overturned unless it is arbitrary, capricious or contrary to sound educational policy (Appeal of Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Patashnick, 39 id. 236, Decision No. 14,225; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194).

Prior to voting to close the two schools, respondent studied cost, capacity, transportation and program impacts.  Respondent considered the declining enrollment at both schools and the ability of the district to accommodate students on a more cost effective basis at another facility.  Respondent also determined that the closing of the two schools would result in substantial cost savings without any cuts in educational programs.  Therefore, based on the record before me, I find that respondent’s decision was rational.

Finally, petitioners’ allegations regarding the Open Meetings Law must be dismissed.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Stolbach, 43 Ed Dept Rep 218, Decision No. 14,977; Appeal of Taber, 42 id. 251, Decision No. 14,843; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

THE APPEAL IS DISMISSED.

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