Appeal of SAMUEL L. RADFORD, III, BYRON J. MCINTYRE, on behalf of his daughter BRIANNA, PATRICIA A. ELLIOTT-PATTON, on behalf of her daughter KIMBERLY, and DR. WENDY MISTRETTA, on behalf of her daughter ANGELINA, from action of the Board of Education of the City School District of the City of Buffalo, Superintendent Pamela C. Brown, and board members Dr. Barbara Seals Nevergold, Jason M. McCarthy, Dr. Theresa Harris-Tigg, Florence D. Johnson, John Licata, Sharon Belton-Cottman, Mary Ruth Kapsiak, Carl Paladino, and James M. Sampson, regarding a district comprehensive improvement plan and school comprehensive education plan.

Decision No. 17,281

(December 13, 2017)

Rashondra M. Martin, Esq., attorney for respondents

ELIA, Commissioner.--Petitioners appeal the actions of the Board of Education of the City School District of the City of Buffalo (“board”), Superintendent Pamela C. Brown (“superintendent”), and board members Dr. Barbara Seals Nevergold, Jason M. McCarthy, Dr. Theresa Harris-Tigg, Florence D. Johnson, John Licata, Sharon Belton-Cottman, Mary Ruth Kapsiak, Carl Paladino, and James M. Sampson (collectively “respondents”), regarding a district comprehensive improvement plan and school comprehensive education plan.  The appeal must be dismissed.

Petitioners McIntyre, Elliott-Patton, and Mistretta are the parents of students in respondents’ district.  Petitioner Radford is President of the District Parent Coordinating Council (“DPCC”), which, according to petitioners, is a “Buffalo Public Schools stakeholder pursuant to Sections 100.11 and 100.18 of the Commissioner’s regulations, Buffalo School Board Policy 3170 and the Buffalo Public School’s [sic] School Based Planning Shared Decision Making Policy.”  

According to the petition, at the board’s regular meeting on August 21, 2013, the board unanimously adopted and approved a District Comprehensive Improvement Plan (“DCIP”) and School Comprehensive Education Plan (“SCEP”). 

Petitioners assert that, prior to the adoption and approval of the DCIP and SCEP, respondents did not seek or obtain petitioners’ participation in the research, planning, developing, or reviewing of the DCIP and SCEP within the meaning of sections 100.11 and 100.18 of the Commissioner’s regulations, Buffalo Public School Board Policy 3170, or the district’s School Based Planning Shared Decision Making Policy.  Petitioners request a determination that respondents adopted and approved the DCIP and SCEP “in violation of state and local law and policy” and a finding that said plans are null and void.

Respondents[1] deny that they failed to obtain petitioners’ participation within the meaning of sections 100.11 and 100.18 of the Commissioner’s regulations, Buffalo School Board Policy 3170, or the district’s School Based Planning Shared Decision Making Policy.  Respondents also assert that the petition fails to set forth facts alleging a cause of action upon which relief may be granted and that “the injuries alleged in the verified petition were caused or occasioned solely or in part by the negligence ... attributable to a third party or parties, whose acts or omissions were not foreseeable by the Respondents and constitute an intervening cause which precludes liability on the part of Respondents as a matter of law.”  Respondents maintain that their actions constituted a good faith exercise of discretion and judgment, for which they are “immune.”

As an initial matter, the appeal must be dismissed to the extent petitioners attempt to assert claims on behalf of students other than the children of petitioners McIntyre, Elliott-Patton, and Mistretta.  Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]). 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).  The purpose of shared decision-making is to foster communication among all parties involved in educating children (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Trombley, 39 id. 115, Decision No. 14,189).  As district residents and parents of children in the district, petitioners McIntyre, Elliott-Patton, and Mistretta have an interest in ensuring that shared decision-making is implemented according to the district’s plan and that parents are represented in the process.  Accordingly, I find that they have standing (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858).

In this regard, however, I note that petitioners have failed to establish that petitioner Radford has standing to maintain the instant appeal.  Indeed, the only allegation in the petition pertaining to petitioner Radford is that he is president of the DPCC, “with the DPCC being a Buffalo Public Schools stakeholder pursuant to Sections 100.11 and 100.18 of the Commissioner’s regulations, Buffalo School Board Policy 3170 and the Buffalo Public School’s [sic] School Based Planning Shared Decision Making Policy.” Petitioners did not provide a copy of Board Policy #3170 or the “Shared Decision Making Policy,” nor do they explain how the provisions of the regulations or policies cited give Radford standing to maintain this appeal, either individually or on behalf of the DPCC.  I also note that it is well settled 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 petitioners have failed to demonstrate that the DPCC nonetheless has standing to challenge the actions complained of in this appeal.

Section 100.11(e)(1) of the Commissioner’s regulations specifies that an appeal to the Commissioner may lie if a board of education fails to provide for consultation with and full participation of all parties in the development of the district’s shared decision-making plan (which was required to have been developed and adopted by February 1, 1994).  Moreover, §100.11(e)(2) provides that “any aggrieved party who participated in the development” of a district’s shared decision-making plan may appeal an action of the board in “adopting, amending, or recertifying” such plan.  Petitioners have asserted no such claims in this appeal with respect to petitioner Radford, who therefore lacks standing to maintain this appeal (see e.g. Appeal Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeal of Kackmeister, 39 id., Decision No. 14,285).

To the extent petitioners seek to maintain the appeal as representatives of a class of “all parents” of the district’s students, class status is denied.  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).  Petitioners have not made this showing.  In fact, the petition does not address the requisite standard at all.  While petitioners state generally that “the aggrieved parents in the Buffalo Public Schools are so numerous that joinder of all members is impracticable,” it is unclear from the record who the “aggrieved parents” are and whether they share all questions of law and fact at issue in this appeal.  Therefore, class status is denied.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (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).  Commissioner’s regulation §100.18(h)(2)(ii) and (iii), applicable to DCIPs and SCEPs, respectively, for the 2013-2014 school year, required that such plans be developed commencing with the 2012-2013 school year and be updated and approved by the board of education annually
thereafter.[2]  Therefore, the plans at issue in this appeal were applicable to the 2013-2014 school year only, which has since concluded.  As a result, no meaningful relief can be granted with respect to petitioners’ claim that respondents adopted and approved the 2013-2014 DCIP and SCEP “in violation of state and local law and policy,” and the appeal is therefore moot.

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

Although the appeal must be dismissed for the reasons discussed above, I note that §100.18(h)(2)(ii) and (iii) of the Commissioner’s regulations, applicable to DCIPs and SCEPs, respectively, require that such plans be “developed in consultation with parents, school, staff and others pursuant to” §100.11.  Petitioners submitted affidavits sworn to by petitioners McIntyre, Elliott-Patton, and Mistretta, indicating that they “like most, if not all” of the district’s high school, middle school and elementary school parents, respectively, “did not have an opportunity to participate in the development of the plans at issue in this proceeding.”  Although respondents generally deny such allegations, they do not provide any evidence indicating any such involvement or attempt(s) to involve parents in the development of the DCIP and SCEP at issue herein.  I remind respondents that the purpose of shared decision-making is to foster communication among all parties involved in the critical job of educating our children. Reasonable communication between petitioners and respondents could resolve the issues between them without resorting to the appeal process.  I therefore remind respondents of their obligation to comply with the spirit and letter of the regulation to achieve the important goals of shared decision-making.

THE APPEAL IS DISMISSED.