Decision No. 12,982

(August 4, 1993)

Bernard F. Ashe, Esq., attorney for petitioners, Mary E. Scalise, Esq., of counsel

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Gregg T. Johnson, Esq., of

counsel

SOBOL, Commissioner.--Petitioners appeal from respondent's actions concerning school based planning and shared decision making, alleging violations of Commissioner's regulations. The appeal must be dismissed.

Petitioners are representatives of the teachers' association (the association") in the Hoosick Falls Central School District ("respondent"). In October 1991, respondent approved the implementation of a shared decision making process. On or about December 9, 1991, respondent's superintendent wrote to Greg Wilson, president of the association, seeking a volunteer for the strategic planning cabinet. The association selected Phyllis Chapman. Instead of having only Ms. Chapman serve, respondent selected additional teacher representatives not endorsed by the association. The president of the association protested. In March 1992, the Board of Regents promulgated 8 NYCRR '100.11 which required school boards to develop for the Commissioner's approval a plan for shared decision making in collaboration with a planning committee. Respondent board adopted a "strategic plan" on February 23, 1993, that was not endorsed by petitioners. This appeal ensued.

Petitioners, Greg Wilson and Phyllis Chapman, allege that respondent's adoption of a strategic plan constitutes adoption of the shared decision making plan under the Commissioner's regulations. Petitioners contend that their representatives were excluded from participation in the strategic planning process in violation of the Commissioner's regulations. Petitioners request that respondent's "strategic plan" be denied approval.

Respondent contends that its strategic plan was not adopted pursuant to '100.11 of Commissioner's regulations and, therefore, has not been submitted to the Commissioner for approval. Respondent further contends that based on the circumstances, the controversy is moot.

In March 1992, Regulations of the Commissioner of Education were promulgated which established procedures for school-based planning and shared decision making (8 NYCRR 100.11). The regulatory intent is to foster a process of school based planning and shared decision making, involving both parents and teachers, to improve the educational performance of all students. The regulation requires every board of education to develop a district plan in collaboration with a planning committee composed of the superintendent of schools, administrators, teachers and parents. The regulation designates teachers as mandated participants in the planning process who must be selected by the teachers' collective bargaining organization to the extent one exists (8 NYCRR 100.11[b]). The regulation further provides that every district must have its plan in place no later than February 1, 1994, which must be submitted to the Commissioner for approval within 30 days of its adoption by the board (8 NYCRR 100.11[d][1]).

In this case, respondent decided to adopt a shared decision making process prior to implementation of the Commissioner's regulation. Aware that shared decision making was being discussed at the state level, respondent anticipated that its plan might be submitted to the Commissioner to satisfy the regulation. However, according to respondent, once the regulation was promulgated, the board realized that since its process did not conform with the regulation, its existing shared decision making plan would not meet regulatory standards.

Respondent's strategic plan was adopted on February 23, 1993, but was never submitted to the Commissioner for approval as its shared decision making plan. Therefore, there is no case or controversy. The Commissioner of Education will only hear matters in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Application of a Child With A Handicapping Condition, 32 Ed Dept Rep 9).

Although the appeal is dismissed on procedural grounds, I am constrained to comment on this appeal. The purpose of shared decision making is to foster communication among all parties involved in the critical job of educating our children. Despite respondent's claims that it repeatedly stated that its strategic plan would not be submitted to the Commissioner as its shared decision making plan pursuant to 8 NYCRR '100.11, petitioners felt compelled to bring this appeal. In its most favorable light, this appeal was brought because of a misunderstanding between the parties. However, I remind the parties that 8 NYCRR '100.11 requires the adoption of a plan by February 1, 1994 and urge them to work to dispel such misunderstanding and to collaborate in the process of developing a district plan. Only through such cooperation can the parties hope to comply with the spirit and the letter of the regulation and achieve the important goals of shared decision making.

THE APPEAL IS DISMISSED.

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