Appeal of TERESA LAZAREK and CHRISTINA ROY, on behalf of the Buc Parent League, from action of the Board of Education of the City School District of the City of Oswego regarding a program elimination.

Decision No. 16,838

(October 26, 2015)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, PC, attorneys for respondent, Miles G. Lawlor, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the City School District of the City of Oswego (“respondent”) to close the Buccaneer Junior/Senior High School (the “Buc”).  The appeal must be dismissed.

The record shows that, during the 2012-2013 and 2013-2014 school years, the district operated an alternative junior/senior high school program known as the Buc.  In April 2014, following a budget review by the district, respondent board voted to approve the proposed budget for public vote.  The proposed budget contained several budget cuts, including staff and program reductions as well as the elimination of funding for the Buc.  Thereafter, public hearings were held, which included discussions about the “closure” of the Buc.  The public vote took place on May 20, 2014 at which the proposed budget was approved.  The effective date of the Buc’s “closure” was June 30, 2014.  This appeal ensued.  Petitioners’ request for interim relief was denied on July 7, 2014.

Petitioners contend that respondent’s decision to “close” the Buc was arbitrary, capricious, and irrational. Petitioners argue that respondent misrepresented the savings that would result from the “closure” of the Buc.  Petitioners also argue that respondent failed to consider the ramifications of the “closure” on students and the community by failing to convene a committee under Education Law §402-a.  Finally, petitioners allege that respondent committed to a five-year plan for the Buc’s operation and is thus estopped from “closing” the Buc.

Respondent contends that its decision was not arbitrary and capricious, but was rational and is supported by substantial evidence.  Respondent argues that the advisory committee under Education Law §402-a is not mandatory, and therefore the failure to convene such committee cannot be used as evidence that respondent’s decision to “close” the Buc was arbitrary and capricious. Additionally, respondent argues that the doctrine of estoppel does not apply against a school district, absent limited exceptions.  Finally, respondent contends that the appeal must be dismissed for failure to state a claim upon which relief may be granted.

First, I must address the procedural issues.  To the extent petitioners attempt to bring this appeal on behalf of the Buc Parent League, I note that an unincorporated association lacks standing to maintain an appeal under Education Law §310 (Appeal of Torres, 46 Ed Dept Rep 301, Decision No. 15,515; Appeal of Russo, 46 id. 266, Decision No. 15,504) and an individual representative of an unincorporated association has no greater standing to maintain such an appeal than the association itself (see e.g. Appeal of Barse, 54 Ed Dept Rep, Decision No. 16,753; Appeal of Beilman, 38 id. 644, Decision No. 14,109).  There is no evidence in the record that the Buc Parent League is incorporated, and petitioners therefore lack standing to bring this appeal on its behalf.  While the individual petitioners have standing to bring this appeal on behalf of their children to the extent they are aggrieved, they lack standing to assert the rights of others (Appeals of Giardina and Carbone, 43 Ed Dept Rep 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).

Section 275.14(a) of the Commissioner’s regulations requires that the reply be served in the manner set forth in §275.8(b) (8 NYCRR §275.14).  The affidavit of service of petitioners’ verified reply, received by my Office of Counsel on August 6, 2014, states that the reply papers were served by mail on the fourth day of August; however, it fails to include the name(s) and/or address(s) of the individuals upon whom such papers were served.  On the record before me, there is no proof that the reply has been served upon respondent’s counsel, and as such it cannot be considered.

I also note that 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, even if I had considered the reply, I would not have considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

I note that petitioners submit several newspaper articles as exhibits to the petition.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Rockwell, 51 Ed Dept Rep, Decision No. 16,355; Appeal of Wachala, 49 id. 31, Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision No. 15,826; Application of Coleman, 45 id. 282, Decision No. 15,324).  Therefore, I have not considered such articles for the veracity of their content.

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).  Petitioner’s state that they are appealing respondent’s May 20, 2014 “decision” to “close” the Buc.  However, the record indicates that the respondent board voted to approve the proposed budget, which included the elimination of funding for the Buc, during its regular meeting on April 24, 2014.  I note that the May 20 date cited by petitioners was the date of the district’s annual budget vote, not the date of respondent’s alleged decision to “close” the Buc (Appeal of Ransom, et al., 54 Ed Dept Rep, Decision No. 16,647).  Indeed, the record indicates that petitioners were aware of the board’s decision prior to the May 20 budget vote, the results of which they do not challenge in this appeal.  Accordingly, petitioners had until May 24, 2014, 30 days from respondent board’s April 24, 2014 decision, to commence this appeal by personal service of their petition and notice of petition on respondent.  When a time period ends on a Saturday, Sunday or a public holiday, a document may be served on the next succeeding business day, in this case, Tuesday, May 27, 2014 (see General Construction Law §25-a[1]).  However, petitioners did not personally serve the verified petition until June 17, 2014.  As petitioners do not set forth any good cause for the delay, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Generally, a board of education of a city 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 (Education Law §§1709(3) and (33) and 2503(1); Matter of Older, et al. v. Board of Education, 27 NY2d 333; Appeal of Small, et al., 52 Ed Dept Rep, Decision No. 16,420; Appeals of Luciano and Hatton, 50 id., Decision No. 16,153).  In such cases, a board’s discretion is broad (Matter of Addabbo v. Donovan, 22 AD2d 383; Appeal of Burnett, et al., 33 Ed Dept Rep 607, Decision No. 13,164).  Accordingly, a board’s decision to reorganize its schools will not be set aside unless it is arbitrary, capricious or contrary to sound educational policy (Appeal of Small, et al., 52 Ed Dept Rep, Decision No. 16,420; Appeals of Luciano and Hatton, 50 id., Decision No. 16,153; 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).  Petitioners have failed to meet their burden of showing that respondent’s actions were arbitrary, capricious, or contrary to sound educational policy.

Although not raised by the parties, I initially note that the record in this case indicates that respondent’s decision to “close” the Buc does not constitute the closing of “a school building” as contemplated by Education Law §402-a.  Education Law §402-a, entitled "Procedures for closing a school building", "authorize[s] and recommend[s]" that school boards establish an "advisory committee on school building utilization to investigate the educational impact" of a proposed school closing at least six months in advance of such action, and requires the committee to prepare a written educational impact statement. Subdivision 2 lists a variety of factors that the committee should consider in preparing its educational impact statement, and includes "[p]ossible use of such building for other education programs or administrative services" and "... the potential disposability of the closed school" (Education Law §402-a[2][a] and [b]).

In this case, while the parties refer to the Buc as a “school,” the record as a whole tends to indicate that it was an alternative educational program for middle and high school students temporarily housed in portable facilities and in the basement of the district’s “Education Center” prior to its “closing.”  Although the record suggests that the Education Center may have been listed for sale, petitioners have not established that respondent contemplated closing a school building within the meaning of the statute.  Because the statute advises districts to consider possible use of the school building "for administrative purposes" as an alternative to "closing" it and directs the committee to consider the “disposability of the closed school,” I conclude that the statute is inapplicable where, as here, petitioners have failed to establish that the district has closed a school building as contemplated by §402-a.

In any event, even if Education Law §402-a were applicable in this case, such provision 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).  Therefore, to the extent petitioners cite respondent’s failure to establish an advisory committee as evidence of its failure to consider the ramifications of the “closure” on students and the community, that argument must fail.

On the record before me, I do not find respondent’s decision to eliminate the Buc program to be arbitrary and capricious or contrary to sound educational policy.  Following a budget review, the district determined that several factors, including overestimation of revenues in previous years, a failure to raise the district tax levy, a continuing drop in district enrollment, and a tax increase by the City of Oswego, necessitated budget cuts in the upcoming year to close a large budget gap.  The record indicates that factors contributing to the elimination of the Buc program included the need for staffing reductions, the fact that the Education Center which temporarily housed the Buc was for sale, and the district’s difficult financial situation.  Due to the district’s decline in enrollment, students from the Buc were able to be reassigned to schools in the district without the need for additional staff, allowing the district to effect the necessary staff reductions.  Although I understand that budget and program cuts are difficult for any community, a board of education is charged with making those difficult decisions.  Petitioners' mere disagreement with that decision does not provide a basis to overturn that decision.  On the record before me, I find that respondent’s decision was not irrational, arbitrary, capricious or contrary to sound educational policy.

With respect to petitioners’ claim that the doctrine of promissory estoppel bars respondent from “closing” the Buc, I note that, except in limited circumstances not applicable here, estoppel does not apply against a government subdivision (Agress v. Clarkstown Cent. School Dist., 69 AD3d 769; Parkview Assoc. v. City of New York, et al., 71 NY2d 274; Hamptons Hosp. and Medical Center v. Moore, et al., 52 NY2d 88; Appeal of Ibrahim, 39 Ed Dept Rep 155, Decision No. 14,200; Appeal of Holzer, et al., 37 id. 549, Decision No. 13,924).  An exception to the general rule exists "where a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice" (Bender v. New York City Health & Hosps. Corp., 38 NY2d 662; see LoCiciro v. Metropolitan Transp. Auth., 288 AD2d 353).  Courts have invoked the doctrine of estoppel against governmental entities where "misleading nonfeasance would otherwise result in a manifest injustice" (Landmark Colony at Oyster Bay v. Bd. of Supervisors of Cty. of Nassau, 113 AD2d 741; see Allen v. Bd. of Educ. of Union Free School Dist. No. 20, 168 AD2d 403). 

The elements of a claim based on promissory estoppel are a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained in reliance on that promise (Agress v. Clarkstown Cent. School Dist., 69 AD3d 769; Williams v. Easton, 49 AD3d 866, 868).  While petitioners make conclusory statements as to the existence of a five-year commitment to operate the Buc and submit a copy of a purported five-year plan for growth of facilities and personnel, petitioners have failed to establish that those items constitute a promise or commitment made by respondent on which it was reasonable for them to rely.  Additionally, on the record before me, petitioners fail to show that respondent acted wrongfully or negligently or otherwise committed misconduct.  On the contrary, respondent presents numerous financial and economic reasons in support of its decision which petitioners do not refute.  On this record, petitioners have failed to make out a case for applying the legal doctrine of promissory estoppel.

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

THE APPEAL IS DISMISSED.

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