Appeal of KAREN L. HERRALA from action of the Board of Education of the Tioga Central School District regarding a school closing.

Decision No. 16,264

(July 22, 2011)

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondent, Michael G. Surowka, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Tioga Central School District (“respondent”) to close an elementary school.  The appeal must be dismissed.

At its April 18, 2011 meeting, respondent voted unanimously to close the Nichols Elementary School (“Nichols”).  This appeal ensued.  Petitioner’s request for interim relief was denied on May 18, 2011.

Petitioner argues that respondent’s April 18, 2011 vote to close Nichols was not properly conducted in violation of Education Law §§1803 and 2025 and alleges that her “civil rights have been impaired.”  Petitioner contends that Nichols “is to remain open under such circumstances” and, citing Education Law §402-a, requests “[a]nother election.”

Respondent argues that petitioner has failed to state a claim upon which relief may be granted and maintains that the provisions of Education Law upon which petitioner relies are inapplicable to the facts of this case.

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner appears to argue that respondent was required to present the issue of closing Nichols to the district’s voters.  To support her contention, petitioner cites Education Law §§1803 and 2025.  However, respondent correctly points out that such provisions pertain to school district meetings and elections and do not apply to a board’s decision to close a school.  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 (Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153; Appeals of Tzach and El-Rez, 49 id. 247, Decision No. 16,016).  Pursuant to Education Law §§1709(3) and (33), and 1804, a board of education of a central school district 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. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153).

Contrary to petitioner’s assertions, decisions regarding school closings are not within the powers of the voters enumerated in Education Law §2021.  While a board of education may present the issue of a proposed school closing to the voters, the responsibility for making the decision rests with the board (seeAppeal of Clyne, 18 Ed Dept Rep 286, Decision No. 9,842).  If a board elects to do so, such a referendum would be advisory only (seeAppeal of Clyne, 18 Ed Dept Rep 286, Decision No. 9,842).  Accordingly, I find that petitioner has not carried her burden of establishing a clear legal right to the relief requested and the appeal must therefore be dismissed.

I note that, in her prayer for relief, petitioner seeks “[a]nother election” and cites the notice provisions of Education Law §402-a(3)(a) to support such request.  However, petitioner’s reliance on this provision is misplaced.  Education Law §402-a contains no provision authorizing an election regarding a school closing.  Rather, this provision authorizes and recommends that a board of education establish an “advisory committee on school building utilization to investigate the educational impact” of a school closing (Education Law §402-a[1]; Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153).  The decision to establish an advisory committee rests solely with the board (Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153).  Moreover, when such a committee is established, the statute requires a consideration of certain factors, notice and a public hearing (Education Law §402-a; Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153).  However, even where an advisory committee is established, the ultimate decision regarding closure rests with the board (Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153).  Respondent asserts that no advisory committee was established in this case and petitioner has produced no evidence to the contrary.  Accordingly, the provisions of Education Law §402-a are inapplicable in the instant appeal and petitioner has failed to establish that she is entitled to the relief requested.

Finally, petitioner alleges that her “civil rights have been impaired” but presents no facts or details with respect to this claim and does not clearly allege the basis upon which she believes her civil rights were impaired by respondent’s action.  To the extent petitioner bases such claim on her inability to vote on the closing of Nichols, no such right exists, as explained above.  Accordingly, such claim must be dismissed.

THE APPEAL IS DISMISSED.

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