Appeal of TODD A. FULLER from action of the Board of Education of the Cattaraugus-Little Valley Central School District regarding a school closing.

Decision No. 16,758

(May 15, 2015)

Hodgson Russ LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel 

BERLIN, Acting Commissioner.--Petitioner challenges the decision of the Board of Education of the Cattaraugus-Little Valley Central School District ("respondent board") to close its Little Valley campus.  The appeal must be dismissed.

On April 16, 2012, respondent board voted to reorganize its school district and consolidate district operations from two campuses into one campus, resulting in the closing of the Little Valley campus (“school closing”).  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner alleges that the school closing violates certain “assurances” approved by the Cattaraugus Central School District board of education (“Cattaraugus board”) in anticipation of voter approval of the annexation of the Little Valley Central School District to the Cattaraugus Central School District.  Specifically, on August 24, 1998, at the request of the Little Valley Central School District board of education, the Cattaraugus board passed a resolution that included assurances that (1) “an elementary building will be maintained ... at the current site in Little Valley” and (2) the district would “maintain comparable elementary programs” between the two school districts.  After the initial September 27, 1999 annexation vote failed, the Cattaraugus board again approved the above assurances and added an additional assurance that “all of the Cattaraugus Central School students will attend the Cattaraugus campus and will not be bused to the existing Little Valley campus.”  A subsequent vote on November 18, 1999 was successful and the annexation became effective on July 1, 2000, resulting in the creation of the present Cattaraugus-Little Valley Central School District.

Petitioner further alleges that the school closing was implemented in disregard of the results of a June 19, 2007 referendum in which voters approved a renovation project for the Little Valley campus that included communications and technology upgrades and other improvements.  Petitioner contends that the district’s referendum proposal included a provision to maintain the elementary campus in Little Valley and to invest funds that had previously been earmarked for expansion of the Cattaraugus campus.  Petitioner alleges that respondent instead subsequently defunded aspects of the Little Valley campus renovation project, and began to prepare for a single campus at Cattaraugus, including marketing the Little Valley campus to county officials.  Petitioner also alleges that respondent pursued the closing of the Little Valley campus as a “bargaining chip” to gain favorable concessions from the teachers union in negotiating a collective bargaining agreement.

Petitioner requests immediate completion of the Little Valley campus renovation project as approved by the voters on June 19, 2007, an “affirmation” of the assurances given in 1998 to maintain a comparable elementary program at the Little Valley campus, and a forensic audit of the district’s finances.

Respondent denies petitioner’s allegations and contends that the appeal must be dismissed for lack of standing, both individually and on behalf of residents of the district, and for untimeliness.

I note that the petition includes copies of newspaper articles.  It is well-settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of McFeeley, 53 Ed Dept Rep, Decision No. 16,598; Appeal of Parris, 51 id., Decision No. 16,261).  Therefore, I have not considered such articles for the veracity of their content.

Petitioner has submitted a reply to respondent’s answer, which also includes additional allegations and exhibits not responsive to such documents.  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.

Both petitioner and respondent request that I allow them to submit additional papers.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  While I have accepted both petitioner’s and respondent’s additional papers pursuant to 8 NYCRR §276.5, I will not consider such materials to the extent they add new claims, raise new issues, or are not relevant to the claims originally raised in this appeal.

The appeal must be dismissed for lack of standing.  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).  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).  There is nothing in the petition that establishes, or even alleges, how petitioner himself has suffered personal damage or injury as a result of respondent’s actions.  Although petitioner alleges that he resides “within the School District,” petitioner’s status as a district resident is insufficient in and of itself to confer standing to challenge a school closing because petitioner does not allege that respondent’s actions have resulted in personal injury to himself, such as a reduction in his property values, as a result of the 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).  Moreover, to the extent petitioner attempts to assert claims on behalf of district residents, the appeal must be dismissed as petitioner lacks standing to assert the rights of others (Appeal of Walker, et al., 53 Ed Dept Rep., Decision No. 16,609).  Accordingly, the appeal must be dismissed for lack of standing.

Furthermore, petitioner has not made the requisite showing to maintain a class appeal on behalf of residents of the district.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Other than to allege that the appeal is brought on behalf of residents of the district, petitioner has failed to adequately describe the class which he seeks to represent or to otherwise meet the requirements for a class appeal.  Therefore, class status is denied.    

Respondent contends that the appeal must be dismissed in part for untimeliness.  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).    Respondent asserts that the appeal is untimely to the extent that petitioner contends the assurances made by the Cattaraugus board on August 24, 1998 are binding on respondent, since there has been at least one variance from the assurances without challenge when respondent previously modified the allocation of grade levels at Little Valley by removing grades K-2 from the Little Valley campus and housing those grades solely at the Cattaraugus campus for the 2009-2010 school year. 

Petitioner’s appeal is based in part on alleged assurances of the Cattaraugus board including that (1) “an elementary building will be maintained ... at the current site in Little Valley” and (2) the district would “maintain comparable elementary programs” between the two school districts.  The fact that respondent, for the 2009-2010 school year, moved grades K-2 from the Little Valley campus to the Cattaraugus campus does not affect petitioner’s reliance on the first assurance that an elementary building will be maintained at the Little Valley campus, since an elementary school still remained at Little Valley after the removal of grades K-2, albeit with only grades 3-5 remaining.  Furthermore, respondent’s movement of grades K-2 from the Little Valley campus to the Cattaraugus campus for the 2009-2010 school year in alleged contravention of the assurances is a separate and distinct cause of action from respondent’s closure of the Little Valley campus in 2012 in alleged contravention of the assurances and as such does not affect, for purposes of timeliness, petitioner’s reliance on the second assurance in this appeal.  Moreover, respondent arguably acted in contravention of both assurances on April 16, 2012 when it voted to close the Little Valley campus, and with it the remaining grade 3-5 elementary school program maintained there.  Petitioner commenced his appeal within 30 days of respondent’s April 16, 2012 vote.  Accordingly, I find petitioner’s appeal timely, with respect to petitioner’s action on April 16, 2012.

Even if the appeal were not dismissed for lack of standing, it would be dismissed on the merits.  Petitioner alleges that the April 2012 decision to close the school violates certain “assurances” approved by the Cattaraugus Central School District board of education on August 24, 1998 and again in 1999.  However, I note that these assurances were made by the Cattaraugus board more than 13 years before respondent board’s April 16, 2012 vote to reorganize its school district and consolidate district operations from two campuses into one campus and, on the record before me, such assurances appear to have been superseded and effectively nullified by respondent board’s April 16, 2012 vote.

 In any event, I decline to direct respondent board to comply with the 1998 assurances.  Petitioner contends that the assurances constitute a binding contract.  Even if, for purposes of argument, I accept that a contract existed, I note that under longstanding common law, courts have applied the principle that a contract whose duration exceeds the one-year term of each board of education violates the public policy principle that one board may not bind a successor board in areas relating to governmental matters, unless a longer term is expressly provided for in statute (see Morin v. Foster, 45 NY2d 287, 293 [1978]; Matter of Lake v. Binghamton Housing Authority, 130 AD2d 913 [3d Dept 1987] or unless there is adequate provision in the contract for a successor board to terminate a multi-year contract at will (Matter of Ramapo Carting Corp. v. Reisman, 192 AD2d 922, 923 [3d Dept 1993]).  The principle articulated in Ramapo was applied to a school district contract in Harrison Central School District v. Nyquist, 59 AD2d 434, and in Appeal of Citizens for Responsible Fiscal and Educational Policy, et al., 40 Ed Dept Rep 315, Decision No. 14,489. 

Regardless of whether the assurances constitute a contract or are merely board resolutions, I find that the aforementioned public policy principle is similarly applicable to preclude the assurances from binding respondent with respect to the school closing.  To hold, as petitioner urges, that a school board may not nullify or rescind the actions of a prior board by subsequent duly-adopted resolutions and that respondent board is bound by the previous assurances adopted by the predecessor Cattaraugus Central School District board of education in 1998, violates the public policy principle that one board may not bind a successor board in areas relating to governmental matters (except in limited circumstances as discussed above, which are not applicable here), and I therefore decline to do so (see Appeal of Ransom, et al., 54 Ed Dept Rep, Decision No. 16,647, app. to reopen den., Appeal of Ransom, et al. 54 id., Decision No. 16,683).

In addition, petitioner appears to assert that the assurances were somehow incorporated into the annexation proceedings.  However, respondent disputes petitioner’s assertion and there is nothing in the record to establish that the assurances were incorporated into the annexation proceedings or the final annexation order.  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 has failed to carry his burden of proof with respect to this claim.

Petitioner has also failed to carry his burden of proof to establish that the school closing was implemented in disregard of the results of a June 19, 2007 referendum that approved a renovation project for the Little Valley campus, which petitioner alleges included a provision to maintain the elementary campus in Little Valley and to invest funds that had previously been earmarked for expansion of the Cattaraugus campus.  Petitioner has failed to submit a copy of the June 19, 2007 referendum proposition approved by the voters containing the actual language of the proposition, to support this claim.      

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 and Trombley, 39 id. 135, Decision No. 14,194).  Pursuant to Education Law §§1709(3), (33) and 1804(1), 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. Of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Malone and Trombley, 39 id. 135, Decision No. 14,194).  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 and Trombley, 39 id. 135, Decision No. 14,194).

The record establishes that respondent reviewed the fiscal and operational impact of operating two campuses, including an 18.7 percent decline from the district’s pre-annexation student enrollment and a projection of a further decline through the 2017-2018 school year for a 22.6 percent decline when compared to the pre-annexation enrollment; that respondent and the district administration held several community meetings in early 2011 to obtain public input on potential cost-saving measures and met with union representatives for district faculty and staff as well; that the possibility of consolidating all district programs and operations on the Cattaraugus campus was raised repeatedly during these meetings, but that respondent chose not to pursue a single-campus at that time; that in January 2012, respondent constituted an ad hoc committee of board members, administrators and the school superintendent to further consider the feasibility and desirability of consolidating district operations at the Cattaraugus campus; that the committee carefully reviewed and considered financial, operational and educational impacts of implementing a single campus, held public information meetings in both the Cattaraugus and Little Valley communities, and publicly reported its findings to respondent at a February 28, 2012 meeting.  The record also indicates that respondent reached a consensus that the single-campus option was in the bests interests of the district’s educational program and the district’s taxpayers for a number of reasons, in that it would result in: (a) achievement of an approximately $250,000 budgetary cost reduction in staffing and other costs; (b) avoidance of additional expenditures of over $200,000 to undertake otherwise necessary technological improvements to equip the Little Valley campus to handle on-line testing; (c) greater operational efficiency and lower transportation costs; and (d) a more unified approach to the district’s curriculum and instruction.  On the record before me, I find that respondent’s decision was not irrational, arbitrary, capricious or contrary to sound educational policy.

Finally, to the extent that petitioner requests a forensic audit of the district’s finances, this claim must be dismissed.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE