Gregory J. Guercio, Esq., attorney for respondent

Decision No. 12,567

(August 19, 1991)

SOBOL, Commissioner.--Petitioner appeals from respondent board's adoption of a resolution closing an elementary school, effective September, 1991. The appeal must be dismissed.

Prior to the action complained of, respondent district operated eight elementary schools covering grades K-6, one middle school covering grades 7 and 8, and one high school covering grades 9-12, serving a total population of approximately 4,400 students. According to a demographic analysis done in November, 1984, the district's public school student population had declined from 7,932 in 1977 to 5,292 in 1983. This decline has continued.

As early as 1984, the district gave serious consideration to reducing the number of school buildings it operated. In addition to the demograpic analysis, a further report of the Secondary Study Committee appointed by the board was completed in June, 1986. This was followed by a superintendent's report to the board in February, 1987. Thereafter, the board established a further advisory committee that functioned from May, 1987, to February, 1988. In June, 1988, it appears that the board, after receiving and reviewing all of the reports mentioned, determined not to close any of the district's elementary schools.

Public school enrollment has continued to decline, however, and several of the board's recent budget proposals have been defeated by the voters. During the 1989-1990 school year, the board continued to receive and review information with respect to declining enrollments and underutilized classroom space at the elementary level. As of February 2, 1990, the superintendent calculated that the district had 170 elementary classrooms available, but would need only 142 classrooms for the 1990-1991 school year. In September, 1990, the board directed the superintendent to devise a plan or recommendation for the reduction of elementary school operations effective September, 1991.

It appears that the superintendent was prepared to make several alternative recommendations at the board meeting conducted on October 24, 1990. At that meeting, which included a lengthy presentation by the superintendent, the board voted by a margin of six in favor (board members Miltenberg, Rooney, Rudin, Martillo, Collins, and Bennett) to one opposed (Wolf) to close the East Street and Willet Avenue elementary schools effective September, 1991.

On November 28, 1990, three board members who had voted in favor of the earlier resolution changed their minds, and by a margin of four in favor (Wolf, Rudin, Martillo, and Collins) to three opposed (Miltenberg, Rooney, and Bennett) voted to rescind the earlier resolution. Upon completion of the vote, board members Miltenberg and Rooney resigned from the board.

On December 5, 1990, the board again conducted a vote with respect to the closing of schools. By a vote of four in favor (Wolf, Rudin, Martillo, and Collins) to one opposed (Bennett) the board voted to close only the Willet Avenue school. (Mr. Bennett continued to support the original decision to close two schools, and disagreed with the decision to close only one.) It is from this action that petitioner appeals. On February 27, 1991, I denied petitioner's request for a stay.

In addition to the stay which I have denied, petitioner requests that I intervene "to order a formal process for establishing criteria for school closings based on written guidelines and community input." He also asks that I remove all current board members and order an election to select a new board acceptable to the community. Petitioner suggests that the actions of certain board members who voted first to close both schools, then to rescind, then to close only the Willet Avenue School were improper, amounted to a conflict of interest, or were in violation of the board's own ethics resolutions. He claims that one board member proposed a private meeting of the board of education in violation of the Open Meetings Law, although it appears no such meeting actually took place. He suggests that the decision to close the Willet Avenue school was incorrect and not in the best interests of the district as a whole.

Petitioner also suggests that respondent has acted in violation of Education Law '402-a, but such claim was raised improperly in his reply (Appeal of Mermelstein, 30 Ed Dept Rep 119), and will not be further considered.

Respondent generally denies the allegations of the petition, and raises several defenses to petitioner's claims. Respondent points out that although petitioner seeks removal of all board members, the notice of petition does not comply with 8 NYCRR '277.1, and service was not made upon the individual board members as required by 8 NYCRR '275.8. Respondent further contends that the petition fails to state a cause of action, and that petitioner has failed to present any substantive factual information supporting his claim that the board acted improperly in closing the Willet Avenue school. Respondent further sets forth defenses on behalf of the individual board members in addition to the defense of lack of jurisdiction.

8 NYCRR Part 277 requires that a notice of petition give specific notice that removal of a board member is sought, and that service be made on the individuals sought to be removed. Petitioner has failed to comply with the pleading requirements and has not made service upon any individual board member. As a result, I will not consider in any detail the alleged misconduct set forth against certain individual board members. I do note, however, that the mere fact that certain board members changed their minds does not, in and of itself, indicate any form of misconduct. I also note that, although one of the board members who changed his mind on closing the East Street school is married to the PTA president for that school, such a circumstance does not constitute a "conflict of interest" in a legal sense. Cf., e.g., Education Law Article 43; '3016; General Municipal Law Article 18. There is no suggestion of any financial impropriety. Finally, even though it appears that one board member desired to conduct a private meeting of the board, no such meeting actually occurred.

Turning to the propriety of the board's action in closing the Willet Avenue school only, it is well settled that decisions concerning school district reorganization are within the sound discretion of a board of education and will not be set aside unless they are shown to lack a rational basis (Matter of Older v. Bd. of Ed., 27 NY2d 333; Matter of Lifshey, 19 Ed Dept Rep 105; Matter of Maur, 21 id. 164; Matter of Stamper, 24 id. 502).

Petitioner bears the burden of clearly demonstrating that respondent board's action was arbitrary, capricious, or contrary to sound educational policy (Matter of Malang, 26 id. 134). I find that petitioner has failed to meet that burden of proof (Appeal of Orzechowski, 27 id. 449; Appeal of Randolph, 28 id. 122; Appeal of McNerney, 28 id. 250).

It appears from the materials before me that during the month of October, 1990, the superintendent was working to reorganize the district's elementary school structure with a view toward closing one or more schools. At one point, the superintendent apparently believed that the board had indicated that certain schools (including East Street) were not to be considered for closure. She then learned that she was free to consider all eight buildings for possible closure. After reviewing the demographic and economic data assembled over the years, the superintendent had prepared three alternative closure recommendations for the October 24 meeting. If two schools were to be closed, the superintendent recommended the closing of Willet Avenue and East Street, or Willet Avenue and Old Country Road; if only one were to be closed, the superintendent recommended Willet Avenue. On October 24, the board elected to adopt the recommendation that the Willet Avenue and East Street schools be closed. Petitioner, whose children apparently attend the Willet Avenue school (although this is not entirely clear in the record), did not challenge that determination. Significantly, the superintendent recommended the closure of the Willet Avenue school in each of her recommendations.

There is no sound legal or evidentiary basis for petitioner's objection to the board's further actions. The November 28 vote simply restored the status quo by leaving all eight elementary schools open as before. Petitioner's objection to the December 5 resolution seems to be based on his perception that one or more of the board members who changed their minds acted either out of improper motives, or against the will of district residents, or both. He also appears to adopt the position of board member Bennett that the December 5 action was taken "without the recommendation of the Superintendent of Schools, to close the Willet Avenue School only."

The decision to close a school building or buildings is seldom an easy one. It may be, as board member Bennett stated it, "the hardest decision a board member has to make . . . ." The record before me indicates a highly emotional ordeal that has resulted in considerable opposition from district residents, no matter which school or schools the board considered closing.

It is true that the superintendent considered the simultaneous closing of both the Willet Avenue and East Street schools to be the preferred course of action. She expressed her concern at the October 24 meeting that closing only one school for 1991-1992, and possibly a second school for 1992-1993, could mean that attendance zones might have to be re-drawn twice, and that some students might have to change schools twice rather than once. (This assumes, as the superintendent and board have done, that the number of elementary schools would not be reduced below six.) At the December 5 meeting, the superintendent also seems to have indicated that her October alternative of closing Willet Avenue alone was not necessarily something she still favored, although the record is far from clear on this point.

While the board may seek advice from the community and the superintendent, it is ultimately the board's responsibility to make the decision to reorganize a district (Appeal of Malang, 26 Ed Dept Rep at 137). In deciding to close the Willet Avenue school, the board closed the school with the smallest enrollment (170 students), the fewest classrooms (12), and the lowest operating efficiency. The closing of Willet Avenue would allow all students presently attending that school to be transferred to the neighboring Woodland Avenue school, thereby avoiding the trauma of splitting the Willet student body. In addition, an immediate cost saving estimated at $370,000 would be realized. Whether this decision is the same decision which the superintendent might have made, or indeed I might have made, is not the issue. Based upon the record before me, the board acted on the basis of extensive background information, and I cannot say that its decision was arbitrary, capricious, or lacked a rational basis. There is no justification for my intervention in this matter.

THE APPEAL IS DISMISSED.

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