Appeal of RUTH ANNE BUZZARD from action of the Board of Education of the Wilson Central School District regarding a school closing.

Decision No. 16,653

(August 18, 2014)

Hodgson Russ LLP, attorneys for respondent, Karl W. Kristoff, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner challenges the decision of the Board of Education of the Wilson Central School District ("respondent") to close an elementary school.  The appeal must be dismissed.

On October 8, 2013, respondent voted to close Stevenson Elementary School (“Stevenson”).  This appeal ensued.

Petitioner alleges that respondent did not follow the process outlined in Education Law §402-a.  Petitioner further alleges that respondent did not publically evaluate the impact of the closing of Stevenson on the affected community because respondent did not discuss the impact with business owners, town officials, the library or the fire department.  Petitioner requests that respondent follow Education Law §402-a to determine the impact of the closing on children in the community. 

 Respondent alleges that the petition is untimely and that petitioner has failed to carry her burden of establishing the facts upon which she seeks relief.  Respondent maintains that its decision to close Stevenson was made after consideration of all relevant factors and, therefore, was not arbitrary and capricious.

 I will first address the procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Although not raised by respondent, I note that standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]; Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609).  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).

Other than her assertion that she is a district resident, petitioner’s appeal is devoid of any evidence showing that she is aggrieved or directly affected by respondent’s action.  While petitioner “question[s]” the “impact” of the closing on children and the community, she does not assert that she is the parent of a student attending Stevenson and she otherwise lacks standing to assert the rights of others (see Appeal of Woodward 36 Ed Dept Rep 445, Decision No. 13,773; cf. Appeal of Ad Hoc Committee to Save Kings Elementary School, et al., 53 id. Decision No. 16,530).  Her status as a district resident does not confer standing, since it is well-settled that status as a taxpayer and resident of the district is not sufficient in and of itself to confer standing to challenge a school closing (see e.g., Appeal of Woodward, 36 Ed Dept Rep 445, Decision No. 13,773; cf. Appeal of LaGrange, 51 id., Decision No. 16,315).  Accordingly, the appeal must be dismissed because petitioner lacks standing.

The appeal must also 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).  The act petitioner challenges is respondent’s October 8, 2013 vote to close Stevenson.  However, the appeal was not commenced until December 10, 2013.  In her reply, petitioner argues that the time period to appeal should be calculated from December 2013, the time when petitioner believes an impact statement on the school closing should have been released.  Petitioner’s argument is unavailing.  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  Moreover, 8 NYCRR §275.16 requires that the reason for failing to commence an appeal within the time specified must be set forth in the petition, not in the reply (see e.g., Appeal of S.T. and M.T., 52 Ed Dept Rep, Decision No. 16,484; Appeal of Gmelch, 32 id. 167, Decision No. 12,794).  Accordingly, the appeal must be dismissed as untimely. 

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  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 Herrala, 51 Ed Dept Rep, Decision No. 16,264;  Appeals of Luciano and Hatton, 50 id., Decision No. 16,153; Appeals of Andrews, et al., 45 id. 248, Decision No. 15,312).  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).  When such a committee is established, the statute requires 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 (see Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153).

The record reflects that respondent commissioned a study by an educational consultant who projected a significant decline in the district’s kindergarten through grade five enrollment between 2011 and 2015.  Respondent also convened a Reorganization Committee, which included parents, community members, teachers, an employee organization, administrators and board members, to study the viability of reorganizing the district’s elementary schools.  After holding several public meetings, the committee voted nine to three against reorganizing.  The record also reflects that closure of Stevenson was discussed during respondent’s September 11, 2012 meeting and again at a work session which included a public forum on October 23, 2012.

Respondent also explored several alternative cost saving measures prior to deciding to close Stevenson.  In May and June 2013, voters rejected two proposed budgets for the 2013-2014 school year which did not include the closing of Stevenson.  Respondent conducted exit polls after the first proposed budget vote and found that the majority of voters supported the closing of Stevenson.  The record also reflects that a five-year budget plan reflecting the closing of Stevenson and an elementary school consolidation plan were developed prior to respondent’s decision to close Stevenson.         

Decisions about the reorganization and 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 Fettinger, et al., 47 Ed Dept Rep 4, Decision No. 15,604; Appeal of Bailey, et al., 45 id. 270, Decision No. 15,318, judgment granted dismissing stay request and petition, Sup. Ct., Albany Co., December 13, 2006).  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; Appeal of Fettinger, et al., 47 Ed Dept Rep 4, Decision No. 15,604; Appeal of Bailey, et al., 45 id. 270, Decision No. 15,318, judgment granted dismissing stay request and petition, Sup. Ct., Albany Co., December 13, 2006).  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 Fettinger, et al., 47 Ed Dept Rep 4, Decision No. 15,604; Appeal of Bailey, et al., 45 id. 270, Decision No. 15,318, judgment granted dismissing stay request and petition, Sup. Ct., Albany Co., December 13, 2006; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850).

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).

Based on the record before me, it is apparent that respondent thoroughly considered the matter and based its decision to close Stevenson on several factors including cost, enrollment and building capacity.  It is also apparent that the board considered community concerns before making its determination.  Accordingly, on this record petitioner has failed to carry her burden of proof and I cannot conclude that respondent’s decision to close Stevenson was arbitrary, capricious or irrational.

THE APPEAL IS DIMISSED.

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