Appeal of BRYAN BOYD from action of the Board of Education of the City School District of the City of Yonkers, Superintendent Bernard Pierorazio, and Virtual High School Global Consortium, regarding a contract for instructional services.

Decision No. 16,364

(June 28, 2012)

Richard E. Casagrande, Esq., New York State United Teachers, attorneys for petitioner, Wendy M. Star, Esq., of counsel

Ana I. Gonzalez, Esq., attorney for respondent Board of Education of the City School District of the City of Yonkers

KING, JR., Commissioner.--Petitioner, a district resident and teacher, seeks to annul a contract between the Board of Education of the City School District of the City of Yonkers (“respondent”) and Virtual High School Global Consortium (“VHS”)[1] to provide online courses to district students.  The appeal must be sustained.

The record indicates that in July 2011, respondent entered into an $18,050.00 contract with VHS, a not-for-profit entity based in Massachusetts, to provide “online expanded student NetCourse offerings to each of the [district’s] six high schools” from “June 2011 - June 2012.”  The contract included “online course access to courses ... provided through a certified educational instructor,” and stated that “[a]ll New York students will be assigned a state certified teacher of record.”  Since June 2011, district students have enrolled in a variety of VHS courses including health, perspectives in health, biotechnology, introduction to calculus, environmental science, history of photography, entrepreneurship and forensic science.

Petitioner commenced this appeal in October 2011, claiming that respondent lacks the authority to contract with independent contractors such as VHS to provide instructional services through VHS employees and that such agreement constitutes “an illegal contracting out of instructional services, and an illegal expenditure of District funds.”

Respondent argues that the appeal must be dismissed as untimely and for lack of standing.  Respondent also maintains that it properly entered into the contract with VHS and that the online instruction at issue is provided in accordance with §100.5(d)(10) of the Commissioner’s regulations.

I must first address several procedural issues.  Petitioner requests that I reject respondent’s memorandum of law as untimely.  Section 276.4 of the Commissioner’s regulations requires that a respondent’s memorandum of law be served within 30 days after service of the answer or 20 days after service of the reply, whichever is later.  In this case, respondent was granted an extension of time to serve its memorandum of law until January 13, 2012.  However, respondent’s memorandum of law was not served until January 26, 2012.  Accordingly, respondent’s memorandum of law is untimely and will not be considered.

Respondent contends that petitioner lacks standing to maintain this appeal.   Petitioner, a district resident, makes such a challenge in that he alleges that respondent’s contract with VHS is unauthorized and, as such, constitutes an illegal expenditure of district funds.  Accordingly, I will not dismiss this appeal for lack of standing.

Respondent also argues that the appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). 

However, the continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).  Petitioner’s challenge to the contract is based, in part, on his assertion that respondent lacks authority to contract for instructional services and that uncertified teachers may be providing instruction to students.  These claims, if true, would be inherently unlawful and thus, constitute a continuing wrong subject to complaint at any time (seeAppeal of McKenna, et al., 42 Ed Dept Rep 54, Decision No. 14,774).  Accordingly, I will not dismiss the appeal as untimely.

Turning to the merits, the critical issue presented is whether respondent improperly contracted with VHS to provide instructional services to its students.  School districts may contract with certain entities where specifically authorized by law and regulation or where necessary to carry out duties imposed on the school district by State or federal law (seee.g., Education Law §§305[33], 3202[6], 3602-e, 4401[2], 4402[2][b]).

However, except where so authorized or necessary, school districts lack the authority to contract with an independent contractor to provide core instructional services through employees of that independent contractor (Appeal of McKenna, et al., 42 Ed Dept Rep 54, Decision No. 14,774), such as social work services (Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375), psychological services (Appeal of Friedman, 19 Ed Dept Rep 522, Decision No. 10,236), or to hire substitute teachers (Appeal of Woodarek, 46 Ed Dept Rep 1, Decision No. 15,422; pet. to review disms’d Kelly Services, Inc. v. USNY, et al., Sup Ct Albany County, 5/22/07, Index No. 7512-06).  In Appeal of McKenna, et al. (42 Ed Dept Rep 54, Decision No. 14,774), the Commissioner explained that “establish[ing], conduct[ing], manag[ing] and maintain[ing] a course of instruction in general academic fields” does not involve “peripheral services such as security services or a recreational program, but is the very core function of a school district.”

There is no dispute that, through its contract with VHS, respondent offers online high school courses in subjects such as mathematics, science and health.  However, respondent alleges that such contract is proper because, pursuant to §100.5(d)(10) of the Commissioner’s regulations, such online instruction is “overseen by a New York State teacher certified in the area that is taught.” 

Section 100.5(d)(10) of the Commissioner’s regulations, adopted in 2011, permits school districts to offer students the opportunity to earn course credit through online or blended courses in which, interalia, instruction is provided “by or under the direction and/or supervision of” a certified teacher from the school district in which the student is enrolled (or from a board of cooperative educational services or another school district if the instruction is provided as a shared service) and the course includes “regular and substantive interaction between the student” and such teacher.

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 alleges, and Attachment A to the contract provides, that teachers providing instruction in VHS courses are VHS employees who have completed a VHS teacher training and are monitored and mentored by VHS staff.  In its verified answer, respondent asserts as an affirmative defense that instruction for VHS courses is conducted “in accordance with” §100.5 of the Commissioner’s regulations.  Respondent contends that “all instruction is provided by a New York State certified teacher or under the direction of a New York State certified teacher in the subject area being taught” and that New York State certified teachers “residing in the State of New York have been assigned as teachers of record to all New York State students enrolled in VHS courses” (emphasis added).  However, respondent does not assert or otherwise establish that such teachers are employed by the Yonkers City School District as required by the regulation (8 NYCRR §100.5[d][10][ii][b][3]) and there is nothing in the record to support such a finding.  I also note that respondent’s answer relies solely upon §100.5(d)(10) and does not identify any other federal or State source for its authority to enter into this contract.  Therefore, on this record, I cannot conclude that respondent acted in accordance with the requirements of §100.5(d)(10) in contracting for online courses.

Although the appeal must be sustained, I note that respondent’s efforts to offer innovative instructional opportunities to its students are to be encouraged.  Nevertheless, on this record, I must find that respondent does not have the authority to accomplish this goal in the manner it has elected.  I do not agree with petitioner’s assertion that it is impermissible for respondent to contract with VHS to provide online instruction through certified teachers employed by VHS in accordance with §100.5(d)(10).  In order to offer online opportunities to students, school districts may need to develop or contract for online programs and courses.  However, in accordance with the long line of precedent noted above, for such option to be permissible in light of State laws and regulations regarding teacher certification and tenure (seee.g., Education Law §§3001 and 2573[1]), such option must be provided by or under the direction and/or supervision of a district’s certified teachers and ensure that appropriate interaction occurs.  While the cases cited above, such as Appeal of McKenna, et al. (42 Ed Dept Rep 54, Decision No. 14,774), make clear that school districts may not use contractual arrangements as a vehicle for avoiding the tenure laws or the requirement that teachers be duly certified, the regulatory requirements pertaining to the use of online learning are intended to guard against such a result.

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the contract between the City School District of the City of Yonkers and VHS is hereby annulled.

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