Appeal of AMY E. KAUFMANN, KERIN-ANN SIANI, LAURA GREENE, LOUISA PAGLIA, ADAM G. STEIN, ROSEANNA STEIN, MARK DAVID, GINA CUTTER, THERESA SWINARSKI, JANICE TALENTO, CHER LEPRE, CHRISTINE LUPETIN, LESLIE M. DOWELL and KERRY WACHTER from action of the Board of Education of the Massapequa Union Free School District and board trustees Timothy Taylor, Joseph LaBella and Brian Butler regarding school reorganization.

Decision No. 17,250

(November 7, 2017)

Guercio & Guercio LLP, attorneys for respondents, Eric Levine, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal a July 13, 2017 decision of the Board of Education of the Massapequa Union Free School District (“respondent board”) reversing a February 9, 2016 decision to reorganize the grades in its elementary schools and middle school and instituting the previous grade configuration.  Petitioners seek relief against the board, as well as against board trustees Timothy Taylor (“respondent Taylor”), Joseph LaBella (“respondent LaBella”), and Brian Butler (“respondent Butler”) (collectively, “individual respondents”) for their role in approving the July 13, 2017 resolution.[1]  The appeal must be sustained in part.

This appeal arises from the underlying events which were the subject of Appeal of Pulizzi, 57 Ed Dept Rep, Decision No. 17,249.[2]  The broader history of the district’s reorganization efforts were amply described in that appeal and will be repeated here to the extent necessary.  Prior to the 2017-2018 school year, respondent’s elementary schools were organized to serve students in kindergarten through grade six.  As set forth by respondent board in the Pulizzi appeal, in October 2015, the district initiated a comprehensive analysis of the proposed sixth grade reconfiguration.  The district held parent forums at each of the district’s six elementary schools; conducted three public work sessions (each one focused on one of three themes: social/emotional considerations, instructional program, and financial impact); visited four other “6-8 grade middle school models” in other districts; held approximately ten leadership meetings with its instructional leaders; and solicited input from sixth grade teachers and others at each of its elementary schools.

Upon completion of the study and outreach activities, the superintendent presented a report at the board’s February 9, 2016 meeting.  The presentation outlined advantages that would result from the reorganization of grades six through eight in the middle school, including increased instructional time, extra-curricular opportunities, teacher support, improved special education services and availability of space in the elementary schools for before and after school child care.  Following the presentation, respondent voted to reconfigure the district’s elementary schools to serve kindergarten through grade five, and to move sixth grade to the middle school beginning in the 2017-2018 school year.[3]  Following this resolution, over approximately seventeen months, the district took measures to effectuate the reconfiguration, including transportation staffing, making certain renovations to the middle school and determining special education programs for students with disabilities.  Respondent also allocated $1.5 million in its 2017-2018 budget proposal to carry out the grade reconfiguration, which budget was approved by voters. 

Respondent Butler was elected to serve on the board and, on July 13, 2017, was sworn into office.[4] 

On July 13, 2017, in a 3-2 vote, respondent adopted a resolution rescinding its February 9, 2016 decision to reorganize its elementary schools to serve kindergarten through grade five and move the sixth grade to the middle school, thereby ceasing the reorganization effort.  Respondent, thereafter, took several measures to carry out its rescission of the sixth grade reconfiguration, including canceling school bus purchases, rerouting transportation routes and re-assigning staff.  This appeal ensued.  Petitioners’ request for interim relief was granted on August 3, 2017.[5]

Petitioners contend, inter alia, that respondent board’s July 13, 2017 decision to reverse the grade reorganization is arbitrary and capricious and that respondent did not provide a rational basis for its decision.  Petitioners also assert that respondent board did not allocate funds in the 2017-2018 budget for reversal of the grade reorganization, nor has it transferred funds to support it.  They assert that respondent did not create a reversal plan and maintain that respondents acted in violation of their duties and obligations.  Petitioners maintain that respondents LaBella and Butler’s vote on the July 13, 2017 resolution was improper.  Petitioners also allege violations of the Open Meetings Law.  Petitioners maintain that the determination to move sixth grade to the middle school is educationally sound and that the district’s existing educational plan for sixth grade students (the kindergarten through grade six model) does not comply with the Education Law and Commissioner’s regulations.  Petitioners request a determination that the July 13, 2017 resolution was arbitrary and capricious and request a “decision to proceed with adding 6^th grade to middle school,” as well as several other determinations with regard to the soundness of the district’s actions.

Respondents assert that petitioners lack standing to maintain the appeal.  Respondents further contend that the appeal must be dismissed as against the individual respondents for lack of personal service.  Respondents additionally contend that the appeal is moot, that petitioners have failed to state a claim upon which relief may be granted and that the board had a rational basis for its decision to reverse its prior grade reorganization decision and to serve sixth grade students in its elementary schools.  Respondents contend that the district’s sixth grade curriculum is compliant with State law and regulations, and that the board was under no obligation to develop a plan before adopting the July 13, 2017 resolution.  Respondents request that the appeal be dismissed.[6]

First, I must address several procedural matters.  Respondents assert that petitioners’ reply must be rejected because it is not verified.  Section 275.5 of the Commissioner's regulations requires that all pleadings be verified by at least one of the petitioners.  The reply filed with my Office of Counsel was verified, as required.  I note, however, that, initially, petitioners inadvertently served a copy of the petition with their reply exhibits attached on respondents.  Petitioners subsequently served a corrected copy of the reply upon respondents which, too, was verified.  Thus, the inadvertent error was cured and as noted, the reply contained the required verification.  Accordingly, I decline to reject petitioners’ reply on this basis.

Respondents further object to new material contained in petitioners’ reply and seek to serve a sur-reply to respond to these allegations.  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.  Accordingly, it is unnecessary to consider respondents’ sur-reply.

Respondents contend that petitioners lack standing to maintain the appeal and that the appeal must be dismissed.  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). 

In reply to respondents’ affirmative defense, petitioners state that petitioners Paglia, Lepre and Wachter are parents of children enrolled in fifth grade in respondent’s elementary schools and submit supporting affidavits by those petitioners.[7]  In the 2017-2018 school year, these children attend sixth grade at the middle school and would be impacted by a decision which upheld or reversed respondent board’s July 13, 2017 rescission of its prior February 9, 2016 determination to reorganize the sixth grade at the middle school, particularly in light of petitioners’ allegations regarding the adequacy of the sixth grade program at the elementary schools.  Therefore, I find that petitioners Paglia, Lepre and Wachter have standing to maintain the appeal and decline to dismiss it as to them.  However, to the extent the remaining petitioners allege only that they are district residents, taxpayers and voters and/or the parents of children who have graduated from or currently attend respondents’ high school; the parents of children who are expected to enter elementary school in respondent’s district in 2019; or the parents of children who “will be enrolled” in kindergarten, grade four, and grade seven; I find that such petitioners lack standing to maintain this appeal.

Next, respondents contend that the appeal must be dismissed as to the individual respondents for lack of personal 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).

Here, petitioners’ affidavits of service indicate that the petition was served upon the district clerk.  While a district clerk may accept service on behalf of a board of education, he or she may not generally accept service on behalf of individual respondents.  There is no indication in the record that the district clerk was authorized to accept service on behalf of the individual respondents.  Therefore, because petitioners failed to personally serve the individual respondents, all claims against them must be dismissed (see Appeal of Budich and MacDonald, 54 Ed Dept Rep, Decision No. 16,774).

Respondents contend that the appeal must be dismissed as moot.  They assert that, as relief, petitioners seek only a stay – which was granted – and several requests that constitute impermissible requests for declaratory relief.  Respondents assert that, because the only viable request for relief was the stay which was granted on August 3, 2017,[8] no further relief can be granted, warranting dismissal of the appeal as moot.  I disagree.  Although respondents are correct that the Commissioner does not issue advisory opinions (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853) and will not entertain an appeal where subsequent events have laid matters to rest and rendered an appeal moot (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836), I do not find such circumstances to be present here.

A petition must contain a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems him or herself entitled (8 NYCRR §275.10).  Where, as here, a petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Application of Schneck, 47 id. 375, Decision No. 15,729).

Upon review of the entire petition, including its wherefore clause, I find that petitioners have sufficiently articulated a request for relief beyond mere interim relief or advisory opinions.  Although several of petitioners’ requests for relief seek advisory opinions, petitioners also set forth a request, in several paragraphs of the petition and in its wherefore clause, for a decision vacating respondent board’s July 13, 2017 resolution and reversal of the February 9, 2016 resolution, and an order allowing the grade reconfiguration – i.e., moving sixth grade to the middle school – to proceed.  

At paragraph 7 of the petition, petitioners request that “the sixth grade proceed and remain at the middle school as planned for September 6, 2017.”  At paragraph 11, petitioners assert that “the Commissioner has the obligation to vacate the vote and resolution passed on July 13, 2017, reversing the February 9, 2016 reconfiguration resolution.”  Throughout the petition, petitioners challenge the July 13, 2017 action as arbitrary and capricious and without a rational basis.  Finally, in the wherefore clause, petitioners include two distinct requests – one seeking a stay and one seeking a “status quo” decision to allow the implementation of with adding the sixth grade to the middle school to continue.  Despite inartful wording by the pro se petitioners, I find that, read in its entirety, the petition seeks a final determination that respondents’ July 13, 2017 action should be vacated, thus permitting the February 9, 2016 action and sixth grade move to the middle school to proceed.  Respondents have not asserted or established any prejudice as a result of such conclusion.  Therefore, I find that the petition sets forth a claim upon which relief may be granted and decline to dismiss the appeal as moot.

Turning to the merits, 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 Ad Hoc Committee to Save Kings Elementary School, et al., 53 Ed Dept Rep 269, Decision No. 16,530; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850; Appeal of Patashnick and Waters, 39 id. 236, Decision No. 14,225; Appeal of Malone, et al., 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, et al., 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 and Waters, 39 id. 236, Decision No. 14,225; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194).

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 assert that respondent board’s action on July 13, 2017, reversing its prior February 9, 2016 decision to reorganize the grades in its elementary schools to serve students in kindergarten through grade five and its middle school to serve grades six through eight, and halting the implementation of such to revert to a kindergarten through six elementary school, is arbitrary and capricious.  Petitioners rely on Appeal of Mathis and Dahlia (28 Ed Dept Rep 347, Decision No. 12,132) and maintain that respondent board did not adequately consider a reversal of the February 9, 2016 determination to reconfigure its grades.

The instant appeal is, in all material respects, analogous to Appeal of Mathis and Dahlia, 28 Ed Dept Rep 347, Decision No. 12,132.  In that appeal, a board of education resolved to consolidate its three high schools into a single high school.  Twenty months after this resolution, three new members were elected to the board.  In a 4-3 vote, respondent changed its one high school plan to a two high school plan.  The Commissioner deemed this series of events arbitrary and capricious, concluding that “respondent did not adequately consider the proposed school reorganization plan prior to its adoption of that plan.”  While the Commissioner acknowledged that the two high school plan may, in fact, have had a rational basis, he refused to consider respondent’s arguments in this respect as they “amount[ed] to no more than a post hoc justification for a decision already reached by a majority of the board.”  In sum, the Commissioner “was not persuaded that the decision of respondent under review [wa]s the result of respondent’s collective judgment and deliberation.”

These statements apply with equal force to the instant appeal.  There is no evidence in the record that the board’s July 13, 2017 reversal of the February 9, 2016 resolution represented the result of respondent’s collective judgment and deliberation.  In the 17 months between the board’s adoption of a sixth through eighth grade middle school configuration in February 2016 and reversal that determination, respondent was actively engaged in implementing the sixth through eighth grade configuration; there is no evidence that respondent was engaged in any discussion, debate or further study of any other options.[9]  Meeting minutes for the July 13, 2017 board meeting do not indicate that this issue, which was (and is) of great importance to the community, was discussed or debated prior to the July 13, 2017 vote.  There is no explanation as to why the board abandoned all of the benefits it previously asserted would be realized from the sixth through eighth grade middle school configuration.  As the Commissioner has long held, decisions regarding school reorganizations are within the district’s discretion unless they are arbitrary, capricious or contrary to sound educational policy.  I find, in this instance, that respondent’s unexplained reversal of a school reorganization which it had been implementing for the prior 17 months, with less than two months before school started in September, is arbitrary, capricious, unreasonable and contrary to sound educational policy.

The only explanation respondent has offered is that the resolution returned the district to the “status quo” and that the district’s sixth grade had been house in its elementary schools for 48 years.  This argument is unavailing because the July 13, 2017 resolution did not represent the status quo, a Latin phrase which means “the situation that currently exists” (Black’s Law Dictionary, 10th ed. 2014).  On July 13, 2017, the district was well into the process of implementing the sixth grade reconfiguration which it had approved over 17 months before on February 9, 2016.  Since that time, the district had, among other things, hired “twelve and one-half additional staff members,” secured five additional buses, reconfigured the cafeteria at the district’s middle school, and secured additional lockers at the middle school to effectuate the reconfiguration.  Having taken these and other actions over the span of a year and a half, it strains credulity to argue that a prior arrangement was the situation that currently existed on July 13, 2017.

But even assuming, arguendo, that the configuration prior to February 9, 2016 constituted the status quo, this would not relieve respondent of its burden to demonstrate that its July 13, 2017 resolution was supported by a rational basis.  Respondent suggests that a return to the “status quo” is per se reasonable, citing Appeal of Voss, 31 Ed Dept Rep 56, Decision No. 12,567.  That appeal, however, is distinguishable.  In Appeal of Voss, a district considered closing one or more of its eight elementary schools due to declining enrollment.  In October 1990, the board voted to close two schools.  The board subsequently rescinded the October 1990 resolution one month later in November 1990.  Then, in December 1990, the board voted to close one school instead of two.  Petitioners appealed the December 1990 resolution to close one school as arbitrary and capricious.

While the Commissioner stated in passing that “[t]he November 28 vote simply restored the status quo by leaving all eight elementary schools open as before,” this statement was not relevant to the validity of the challenged December 1990 resolution.  Moreover, only one month had passed between the October 1990 reconfiguration vote and its rescission in November 1990, and there is no indication that, unlike in the instant appeal, the district took any action to implement the October 1990 vote before its rescission.[10]  In that case, the several votes were contemporaneous with deliberations, unlike the present situation.

Finally, petitioners argue that the July 13, 2017 resolution was arbitrary and capricious because respondent board allegedly failed to perform certain specific actions, such as developing a “plan of reversal” with a provision for providing “necessary funding” and holding a meeting or providing specific notice of such meeting.  Respondent board argues that it was under no legal obligation to perform the actions complained of by petitioners.  While I agree with respondent that it was not required to undertake several of the specific actions complained of petitioners, petitioners also challenge the overall manner in which respondent arrived at its decision as lacking a rational basis.  Therefore, respondent cannot rescue its otherwise arbitrary decision by arguing that it was not required to take specific actions cited by petitioners.

Although, as respondent notes, a board of education is not prohibited from nullifying or rescinding the actions of a prior board by subsequent duly-adopted resolutions (see e.g. Appeal of Ransom, et al., 54 Ed Dept Rep, Decision No. 16,647), under the circumstances presented here, as in Appeal of Mathis and Dahlia, I am not convinced that the July 13, 2017 resolution represented “the result of respondent’s collective judgment and deliberation” (Appeal of Mathis and Dahlia, 28 Ed Dept Rep 347, Decision No. 12,132).  Consequently, respondent’s decision is not supported by a rational basis in the record and must be set aside.  Nothing in this decision, however, shall preclude respondent board from further deliberations regarding the district’s grade configuration, as long as it articulates a rational basis for any ultimate decision that it makes.  Respondent must also ensure that its decision represents sound educational policy, a determination which must consider all factors relevant to the proposal, such as, for example, those considered by the board in adopting the February 9, 2016 resolution (Appeal of Pulizzi, 57 Ed Dept Rep, Decision No. 17,249).

Finally, to the extent petitioners raise claims under the Open Meetings Law, Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

     In light of the above disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED, that respondent board’s July 13, 2017 resolution to reverse its February 9, 2016 resolutions reorganizing the grades in its elementary schools and middle school is hereby annulled.

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