Appeal of EDITH HITCHEN from action of the New York City Department of Education and Mary Maher, Principal of the New York City Department of Education Hospital Schools Program, regarding shared decision-making.

Decision No. 16,916

(June 22, 2016)

Zachary A. Carter, Esq., Corporation Counsel, attorney for respondent New York City Department of Education, Elizabeth Edmonds, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from action of the New York City Department of Education (“DOE” or “respondent”) and Mary Maher,[1] Principal of the DOE Hospital Schools Program (“principal”).  The appeal must be dismissed.

Petitioner is a teacher and the United Federation of Teachers (“UFT”) Chapter Chair of the Hospital Schools Program (“Hospital Program”).  Petitioner asserts that she represents approximately 135 teachers, paraprofessionals, and staff employed in the Hospital Program.  According to the record, the Hospital Program provides services to all school-aged students hospitalized at 39 hospitals citywide, including private and parochial school students.  Teachers in the Hospital Program coordinate assignments with teachers from the students’ home schools and also assist in coordinating home instruction if necessary.

According to petitioner, prior to July 18, 2012, the Hospital Program had a School Leadership Team (“SLT”) comprised of UFT-elected members, pursuant to Education Law §2590-h, 8 NYCRR §100.11, and Chancellor’s Regulation A-655, which used a shared decision-making process that included petitioner and the Hospital Program’s principal, teachers, and parents, to develop an annual school comprehensive educational plan (“CEP”) aligned with the budget for the ensuing school year.

By letter dated March 23, 2012, the Executive Director (“executive director”) of DOE’s Division of Family and Community Engagement (“FACE”) responded to concerns raised about parental involvement in the Hospital Program SLT.  The executive director advised as follows:

Upon close examination, we have determined that since the Hospital Schools program services a largely transient student body, with many students participating temporarily until they are able to return to their home schools, the program is not a school within the meaning of CR A-655, and need not adhere to the requirements of CR A-655.  Accordingly, the Principal of the Hospital Schools program has discretion to implement alternative, more flexible approaches for soliciting input from parents and staff, as the Principal deems appropriate.

According to petitioner, on July 18, 2012, the principal “abolished” the elected SLT, based on the March 23, 2012 letter, and renamed it the “Hospital Schools Advisory Team.”  

This appeal ensued.  Petitioner’s request for interim relief was denied on September 21, 2012.

Petitioner asserts that the principal’s actions violated Education Law §2590-h, 8 NYCRR §100.11, and Chancellor’s Regulation A-655, pertaining to school-based planning and shared decision-making.  She claims that the principal’s decision to abolish the SLT and replace it with a “handpicked Advisory Team” violates the law by eliminating the SLT’s role in the decision-making process, including the preparation of the CEP and school budget.  She further claims that such action violates the contract between DOE and UFT.  Petitioner requests that the elected SLT “be allowed to continue following the traditional structure and protocol understood by all to be the elected body’s prerogative, until a lawful process of amendment deemed lawful by the Commissioner takes place.”   

Respondent asserts that the appeal must be dismissed as untimely, for lack of proper service, and for lack of verification.  Respondent also contends that petitioner lacks standing to maintain the instant appeal.  Respondent denies petitioner’s contentions and maintains that its actions were legal and proper and were not arbitrary or capricious.  It contends that the Hospital Program is a program and not a school requiring an SLT within the meaning of the law and regulations.

I must first address the procedural issues.  Respondent asserts that the petition is not properly verified in accordance with §275.5 of the Commissioner’s regulations.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  The petition submitted to my Office of Counsel contained the requisite verification.  Although petitioner should have included a copy of the verification with the papers served on respondent, I will excuse this omission because petitioner is not represented by counsel and my Office of Counsel received a verified petition (Appeal of Curry, 55 Ed Dept Rep, Decision No. 16,795; Appeal of J.H. and T.H., 54 id., Decision No. 16,687; Appeal of W.B., 54 id., Decision No. 16,662; Appeal of Carangelo, 49 id. 217, Decision No. 16,006; Appeal of M.M., 42 id. 323, Decision No. 14,870).

A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  Respondent’s answer was served by mail on September 25, 2012.  Petitioner therefore had until October 10, 2012, to serve her reply.  By letter dated October 10, 2012, petitioner requested additional time to prepare her reply.  By letter dated October 12, 2012, my Office of Counsel advised that it could not grant petitioner’s request for an extension because, pursuant to Commissioner’s regulation §276.5, the reply papers must accompany such request and include proof of service on all other parties. 

On April 22, 2013, my Office of Counsel received a submission from petitioner, dated April 2, 2013, entitled “Affidavit to Verified Answer to Respondent.”  The submission appears to be in the nature of a reply as it states that it is submitted in response to the verified answer.  The submission is 71 pages long, containing over 95 paragraphs and annexing over 44 exhibits.  Nevertheless, any reply should have been served by October 10, 2012, and petitioner’s affidavit in the nature of a reply, which was not received by my Office of Counsel until April 22, 2013, is untimely (see e.g. Application of Paladino, 53 Ed Dept Rep, Decision No. 16,595).  Moreover, the submission was not properly verified in violation of §275.5 of the Commissioner’s regulations (see Appeal of Stephenson, 51 Ed Dept Rep, Decision No. 16,329).  Respondent does not object to such submission, but the record contains no affidavit of service indicating that the submission was properly served upon respondent.  Absent evidence of service of a copy of a reply in the manner prescribed in 8 NYCRR §275.8, the contents of the reply will not be considered (see Appeal of J.H. and T.H., 54 Ed Dept Rep, Decision No. 16,687; Matter of the Parents of Two Handicapped Children, 19 id. 361, Decision No. 10,167).

In addition, I note that 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).  Petitioner’s reply affidavit contains no application pursuant to §276.5(a) setting forth the reason(s) why such submission is necessary.  For these reasons, I decline to consider petitioner’s reply.

According to the notice of petition, petitioner is attempting to bring “a class action on behalf of the newly elected UFT [SLT] members and Hospital Schools Program teachers and staff who elected the current [SLT], all bona-fide members of the UFT.”  Petitioner alleges that she “represent[s] approximately 135 teachers, paraprofessionals and staff.”  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).  Petitioner has not established that the issues of fact and law in this appeal are the same for all members of the proposed class.  Moreover, petitioner has failed to set forth the exact number of individuals she seeks to represent and 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).  Therefore, class status is denied.

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).  To the extent petitioner attempts to bring this appeal on behalf of others, including teachers, paraprofessionals, staff and/or “the currently elected SLT,” petitioner lacks standing to do so (Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631; Appeal of Walker, et al., 53 id., Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordan-Thompson, 42 id. 334, Decision No. 14,874).

Respondent argues that petitioner lacks standing to maintain this appeal on her own behalf because she fails to allege or establish that she has suffered any injury as a result of respondent’s action in renaming the SLT.  For example, as respondent notes, petitioner does not allege that her teaching duties or salary or any other conditions of her employment have been affected by respondent’s action and the record indicates that petitioner is still permitted to attend and participate in meetings of the Advisory Team.  Respondent also notes that petitioner fails to allege that she is a district resident or the parent of a child in New York City (cf. Appeal of Pollicano, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Trombley, 39 id. 115, Decision No. 14,189).  However, as noted above, the record indicates that petitioner is a teacher and the UFT Chapter Chair of the Hospital Program and that, as such, she was a member of the SLT until respondent acted to reconstitute the group.  To that extent, I find that petitioner has standing to challenge respondent’s action and I will not dismiss the appeal on that ground (Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631; Appeal of Walker, et al., 53 id., Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordan-Thompson, 42 id. 334, Decision No. 14,874).

However, the appeal must be dismissed for lack of proper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  According to the affidavit of personal service, the process server served the petition upon Lisette Roman, a clerical staff member, at 52 Chambers Street, the location of the Chancellor’s office.  Respondent asserts that the designated agent for receipt of service of process for the DOE is the Office of the Corporation Counsel at 100 Church Street and that the offices at 52 Chambers Street are not authorized to accept service on behalf of respondent.  Respondent further avers that the Office of the Corporation Counsel did not receive the petition until September 7, 2012.  Where, as here, there is no proof that an individual has been authorized to accept service on behalf of respondent, service on that individual is improper and the appeal must be dismissed (Appeal of Terry, 50 Ed Dept Rep, Decision No. 16,117; Appeal of Peterson, 48 id. 530, Decision No. 15,939; Appeal of DeMarco, 48 id. 252, Decision No. 15,850; Appeal of Baker, 47 id., 280, Decision No. 15,696; Appeal of Harmon, 43 id., 478, Decision No. 15,057).

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 Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  Petitioner challenges the principal’s July 18, 2012 determination to rename the SLT.  According to the affidavit of service, the verified petition was served on August 31, 2012, more than 30 days after the determination, and petitioner does not provide any excuse for the delay.  The appeal is therefore untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Petitioner asserts that the principal’s actions violated Education Law §2590-h, 8 NYCRR §100.11, and Chancellor’s Regulation A-655, pertaining to school-based planning and shared decision-making.  She claims that the principal’s decision to abolish the SLT and replace it with a “handpicked Advisory Team” violates the law by eliminating the SLT’s role in the decision-making process, including the preparation of the school CEP and school budget.  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).

Section 100.11 of the Regulations of the Commissioner of Education requires school districts to develop and adopt a district plan for the participation by teachers and parents with administrators and school board members in school-based planning and shared decision-making.  Further, Education Law §2590-h requires that the DOE Chancellor “[p]romote the involvement and appropriate input of all members of the school community” by, among other things:

taking all necessary steps to ensure that no later than October first, nineteen hundred ninety-nine, the city district and the community districts are in full compliance, and remain in compliance thereafter, with state and federal law and regulations concerning school-based management and shared decision-making, including section 100.11 of the commissioner’s regulations ... (Education Law §2590-h[15][b][i]).

Chancellor’s Regulation A-655 (“A-655”) implements the requirements of Commissioner’s regulation §100.11 and sets forth DOE’s plan for school-based planning and shared decision-making.  A-655 requires the establishment of SLTs in each New York City public school.  An SLT consists of the school principal, the UFT Chapter Leader, the Parent Association/Parent-Teacher Association president or co-president, or their designees, and up to 14 other parents, staff, students, and community members.  SLTs are responsible for developing an annual school CEP that is aligned with the school-based budget for the ensuing school year (A-655[II][A][1]).

Respondent asserts, and I agree, that the Hospital Program is a program and not a school subject to the shared decision-making provisions of Education Law §2590-h, 8 NYCRR §100.11, and Chancellor’s Regulation A-655.  According to the principal of the Hospital Program, the Hospital Program differs from DOE schools in a number of ways.  For example, its students are a transient population and are frequently part of the Hospital Program for only a few days or weeks at a time during their hospitalizations.  As such, it does not have a parent association.  Respondent asserts that, unlike DOE’s public schools, the Hospital Program is also not required under State law to report attendance statistics to the State or to develop a CEP, nor does it receive an Annual School Report Card or Progress Report from DOE.  Moreover, A-655 only requires, consistent with Education Law §2590-h(15)(b)(i), “an SLT in every New York City Public School.”  Petitioner has not demonstrated any legal requirement for a program such as the Hospital Program to have an SLT.

According to respondent, the former committee was actually an advisory body composed primarily of staff members.  As described above, an SLT within the meaning of Chancellor’s Regulation A-655(II)(A)(1) consists of the school principal, the UFT Chapter Leader, the Parent Association/Parent-Teacher Association president or co-president, or their designees, and up to 14 other parents, staff, students, and community members.  Respondent explains that, although the Hospital Program’s advisory body was previously called an “SLT,” it could not legally satisfy the requirement that an SLT contain a balanced representation of parents and staff, pursuant to Education Law §2590-h(15)(b)(i), because, for example, the Hospital Program does not have a Parent Association.  Therefore, as respondent correctly asserts, the former committee, which may have been called an SLT, was not actually an SLT under the purview of Education Law §2590-h, 8 NYCRR §100.11, and Chancellor’s Regulation A-655. 

According to the principal, the renaming of the committee furthered the legitimate business goal of reducing confusion as to whether the former team was a properly composed SLT within the meaning of the law and regulations.  Additionally, this change was made in order to increase opportunities for parental involvement in the Hospital Program.  Respondent explains that the new Hospital Schools Advisory Team will promote more extensive parent involvement and address the unique needs of the Hospital Program.  The principal asserts that the purpose of renaming the team was not to disenfranchise any group of stakeholders but rather to provide all stakeholders increased opportunities to collaborate.  Moreover, as with the former committee, the Hospital Schools Advisory Team will continue to provide similar advisory functions, and petitioner and the other UFT members will be permitted to attend and participate in the Hospital Schools Advisory Team meetings.  On the record before me, I cannot find that respondent abused its discretion in renaming the committee.  

Finally, to the extent petitioner asserts that the renaming of the SLT violates the contract between the DOE and the UFT, petitioner has not submitted any evidence with respect to this claim or established how such contract was allegedly violated. 

Accordingly, petitioner has failed to meet her burden of establishing that the decision to rename the former SLT to the Hospital Schools Advisory Team was arbitrary, capricious, or without a rational basis.

THE APPEAL IS DISMISSED.

END OF FILE