Decision No. 13,403

(April 13, 1995)

SOBOL, Commissioner.--Petitioner is the exclusive collective bargaining representative, pursuant to Article 14 of the New York Civil Service Law, for all nonsupervisory pedagogical personnel and instructional paraprofessionals employed in the New York City public school system and by respondent central board. Petitioner appeals the failure of the Chancellor and the New York City Board of Education ("central board") to issue guidelines to community school districts and high school superintendencies regarding the implementation of 8 NYCRR 100.11. Petitioner also appeals the adoption of a shared decisionmaking plan by Community School Board 1 ("CSB 1"). Specifically, petitioner objects to the manner in which the final version of the plan was developed and adopted by CSB 1. Lastly, petitioner objects to the actions of Community School Board 9 ("CSB 9") regarding the composition and operation of its planning committee. The appeal must be sustained in part.

Actions of the Chancellor and central board

In the spring of 1993, representatives of the Chancellor and central board began planning for the development of a central board policy and Chancellor's circular regarding '100.11. To prepare for the implementation of '100.11, members of the Chancellor's staff met with representatives of major constituent groups. In addition, the Chancellor's staff consulted with Deputy Commissioner Arthur Walton and Assistant Commissioner Samuel Corsi of the New York State Education Department, who provided technical assistance.

In a memorandum dated May 18, 1993, Ms. Guasp, Executive Director of the Division of Instruction and Professional Development for the central board, notified all superintendents that an information session regarding '100.11 would be held on June 2, 1993. By letter to Ms. Guasp, dated August 13, 1993, Assistant Commissioner Corsi responded to a number of questions raised at the June 2, 1993 session. One of the questions asked was, "[c]an the New York City central board of education provide guidelines for community school boards to follow in drawing up their section 100.11 district plan?" In response, Mr. Corsi stated that "[a]lthough the regulation requires each community school district board of education and each high school superintendency to develop a plan for school-based planning and shared decisionmaking, the central board of education is not precluded from providing guidance to the districts in the development of their plans."

On November 5, 1993, the Chancellor's office issued a memorandum to all superintendents regarding the implementation of '100.11. The memorandum addressed, among other things, the selection to planning committees of parents, administrators and teachers. A copy of the regulation and a planning format, with the six questions '100.11 required each committee to address, was attached to the memorandum. The memorandum directed that superintendents submit their plans to the central board by December 17, 1993. On November 8, 1993, Mr. Corsi wrote to Dr. Askia Davis, Senior Assistant to the Chancellor, expressing his concern about the implementation of '100.11. In that letter, Mr. Corsi stated "I have never indicated to you that the central board should not issue a circular regarding the implementation of 100.11." Furthermore, Mr. Corsi stated "I have indicated to you on both occasions cited [sic] that I thought it would be helpful if the central board would issue guidance about how to proceed to community school districts and high school superintendencies. Specifically I indicated that suggestions or recommendations from the central board about how to go about forming committees pursuant to the regulation could serve to `get things started' in a proper fashion."

Thereafter, the central board received the plan of each of the high school superintendencies and community school districts. The central board submitted its plan to the New York State Education Department.

Actions of CSB 1

On December 7, 1993, CSB 1 notified Robert Kruter, the United Federation of Teachers' (UFT) representative for CSB 1 and a member of the district's planning committee ("committee"), that the first meeting of the committee would be held on December 14, 1993 and a second meeting would be held on December 20, 1993. The committee recommended a plan to CSB 1, which held a public work session on December 21, 1993. According to Mr. Kruter, CSB 1 did not give him any advance notice of the December 21, 1993 meeting. At that session, CSB 1 approved a proposed plan that contained modifications to some parts of the committee's plan and added two new sections. Among the modifications were specifications on the ratio of team members and term limits of team members.

By letter dated December 22, 1993, the day after the December 21 public work session, Dolores Schaefer, chairperson of CSB 1, informed the members of the committee that CSB 1 had approved a proposed plan which contained modifications and additions to the plan recommended by the committee. The letter enclosed a copy of the revised plan, advised that CSB 1 would vote on the plan on January 5, 1994 and stated that we "encourage your further comments." According to Mr. Kruter, this letter was received during the school holiday recess and, as a result, there were only three school days between the receipt of the letter and the January 5, 1994 board meeting. At the January 5, 1994 meeting, CSB 1 adopted the final plan, as modified on December 21. Mr. Kruter addressed the board on January 5 and expressed the UFT's opposition. Thereafter, Mr. Kruter submitted a memorandum to CSB 1 claiming that the process used by CSB 1 violated '100.11.

On January 18, 1994, the chairperson of CSB 1 forwarded CSB 1's plan to the central board with a letter explaining why changes to the committee's recommended plan were made and why the teachers and administrators did not endorse the plan. Only the school-related parent organization(s) endorsed the plan.

Actions of CSB 9

By resolution adopted November 24, 1993, CSB 9 established guidelines for the composition and operation of the district's planning committee ("committee"). With regard to composition, the guidelines mandated that the committee consist of 3 board members, 3 members of the Coucil of Supervisors and Administrators (CSA), 3 members of the UFT and 4 parents. Furthermore, the guidelines mandated that the committee be as balanced as possible to reflect the ethnic and student population of the district 9 community. The guidelines also mandated that the committee choose a chairperson, operate under Roberts' Rules of Order and seek consensus as a first choice in decisionmaking, and then if necessary, decide questions by a simple majority. CSB 9 completed its plan on or about January 26, 1994 and submitted it to the central board.

This appeal ensued. On February 7, 1995, I heard oral argument by the parties to this appeal.

Petitioner contends that the Chancellor and central board violated '100.11 and acted arbitrarily and capriciously by failing to provide guidelines to the community school boards and high school superintendencies regarding the implementation of '100.11. Petitioner also contends that the Chancellor and central board violated a number of duties conferred upon them by Education Law ''2554, 2566, 2590-d, 2590-e, 2590-g and 2590-h as a result of their failure to issues guidelines.

With regard to CSB 1, petitioner alleges that CSB 1 violated ''100.11(b) and (d) and acted arbitrarily and capriciously when it unilaterally modified and added to the plan submitted by the planning committee without consultation with or participation by the planning committee, and without seeking the endorsement of the planning committee. With regard to CSB 9, petitioner alleges that CSB 9 violated ''100.11(b) and (d) and acted arbitrarily and capriciously by mandating the composition and operating procedures of the planning committee without proper collaboration with the participant groups. Petitioner further contends that CSB 9 violated ''100.11(b) and (d) and acted arbitrarily and capriciously by mandating that the planning committee include 3 members of CSB 9.

Initially, respondents contend that the petition fails to state a cause of action and should be dismissed. With regard to the actions of the Chancellor and central board, respondents contend that neither '100.11 nor the Education Law require the Chancellor or central board to issue formal guidelines regarding the implementation of '100.11. Respondents further maintain that the guidance efforts of the Chancellor and the central board were sufficient and complied with law. In addition, respondents contend that they have been committed to UFT involvement and have complied with all applicable mandates regarding '100.11.

With regard to CSB 1, respondents allege that the method of CSB 1's adoption of a final plan fulfilled the requirements of '100.11 to develop a plan in consultation with a planning committee. With regard to CSB 9, respondents allege that CSB 9 did not violate '100.11 by promulgating guidelines on the composition and operation of the planning committee because '100.11 contains no prohibition against developing such guidelines.

On review of the record, I find that petitioner's claims regarding the issuance of guidelines must be dismissed. Although guidelines may have been helpful, they are not expressly or implicitly required by '100.11. As stated in Appeal of Parents Coalition for Education in New York City, Decision No. 13398, 34 Ed Dept Rep :

Accordingly, for the reasons previously stated in Appeal of Parents Coalition for Education in New York City, supra, petitioner's first claim regarding the issuance of guidelines is dismissed.

Petitioner also argues that certain sections of the Education Law require the Chancellor and central board to issue guidelines. Although, the provisions relied upon by petitioner impose various obligations on the Chancellor and central board, none of them affirmatively require the issuance of guidelines. In fact, Education Law '2590-h(16) gives the Chancellor the discretion to promulgate such rules and regulations as he may determine to be necessary. In addition, the central board is authorized by '100.11 to decide how the City will incorporate the plans of the community school districts and high school superintendencies into its plan. It is the intent of the regulation to allow the central board to modify a community school district's plan where it addresses areas within the exclusive domain of the central board.

Lastly, there is no proof that the failure to issue formal guidelines caused any community school districts to violate '100.11. More specifically, there is no evidence that members of the UFT have been excluded from meaningful participation in shared decisionmaking as a result of the failure to issue guidelines. Therefore, petitioner has not demonstrated any actual harm. Accordingly, petitioner's claims against the Chancellor and central board regarding the issuance of guidelines are dismissed.

Petitioner's claims against CSB 1, however, must be sustained. Section 100.11(b) provides that a district's shared decisionmaking plan be developed and adopted by the board in collaboration with a committee composed of the superintendent of schools, administrators, teachers and parents. Section 100.11(d)(1) further requires that the plan:

The record before me indicates that the procedure CSB 1 used to adopt its shared decisionmaking plan did not conform with '100.11. On December 21, 1993, CSB 1 approved a proposed plan that modified some parts of the planning committee's recommended plan and added two new sections. Neither party discussed whether the modifications and additions were substantial enough to require further consultation. However, since the changes concerned, interalia, the composition of the teams and term limits of team members, I find that these changes were significant enough to merit further discussion by the planning committee.

CSB 1 argues that petitioner had opportunities to comment at both the public working session on December 21 and the meeting at which the vote was taken on January 5, 1994. The record, however, shows that some committee members did not receive sufficient notice of the December 21 public working session in time to attend and/or

comment. In addition, since the December 22, 1993 letter was sent during the holidays, committee members had only 9 business days and 3 school days to discuss the changes. This short notice did not provide a meaningful opportunity for a collective meeting of the committee. Indeed, the process followed seems to have vitiated any possibility of thoughtful consideration and debate required by the regulations (Appeal of Passino, supra).

Moreover, the record indicates that CSB 1 convened both meetings of the planning committee. It was reasonable, therefore, for the planning committee to expect that CSB 1 would take the initiative to schedule another meeting to consider the proposed changes. Having failed to do so, I find that CSB 1 adopted the plan without "consultation ... and full participation of" the designated representatives. Furthermore, although a board only has to seek, not obtain, endorsement prior to approving a plan (Appeal of Passino, 34 Ed Dept Rep 6) I find that the process used by CSB 1 did not amount to "seeking endorsement" as intended by the regulation.

Finally, petitioner's claims against CSB 9 must be dismissed. Petitioner argues that board members may not serve on a district's planning committee. Section 100.11 lists the mandatory participants to the shared decisionmaking process. Specifically, '100.11(b) states that a district plan "shall be developed in collaboration with a committee composed of the superintendent of schools, administrators..., teachers ..., and parents ...." The school board is responsible for adopting the district's plan after consultation with and full participation by the designated representatives of the administrators, teachers and parents, and after seeking the endorsement of the plan by such designated representatives (8 NYCRR 100.11[d][1]). I note that the intent of the regulation is for board members to work in collaboration with the district planning committee and not serve on the committee itself. Accordingly, I find that CSB 9's appointment of board members to the planning committee violates '100.11. However, there is no evidence in the record that this defect requires the annulment of the district plan. Therefore, I will not set aside CSB 9's plan on this basis. Nevertheless, CSB 9 is reminded that in future biennial reviews, board members should not serve on the committee designated by '100.11(b).

Petitioner also argues that CSB 9 mandated the composition of the planning committee without consulting any of the necessary constituent groups. Specifically, CSB 9 required the committee to be composed of 3 board members, 3 administrators, 3 teachers and 4 parents. Furthermore, CSB 9 mandated that the committee be "as balanced as possible reflecting the ethnic and student population of the community."

Section 100.11(b) requires that the district plan be developed in collaboration with a committee composed of the superintendent of schools, administrators, teachers and parents. The regulation does not designate the exact number of representatives on the committee or specifically require that representation be equal or reflect the population of the community. However, I note that the intent of the regulation is that all constituencies participate equitably (Appeal of Fitch, et al., Decision No. 13391, 34 Ed Dept Rep

). Moreover, the regulation does not specifically require that the board consult with the constituent groups when establishing the committee. Therefore, petitioner's claim regarding the composition of the planning committee must be dismissed.

Finally, petitioner argues that CSB 9 imposed a number of rules regarding the committee's operation. Section 100.11 is silent with respect to this issue. I note, however, that the intent of the regulation suggests that decisions on how the committee should operate should be made collaboratively by the board in consultation with representatives of the various constituent groups. In any case, I find that the imposition of rules regarding the committee's operation is not significant enough to require the annulment of the plan. Accordingly, petitioner's claim regarding the imposition of operating procedures is dismissed.

I have reviewed the parties' remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent CSB 1 submit the plan which it previously sent to the central board to the planning committee for its review of CSB 1's modifications and additions. After fully consulting with the committee and seeking its endorsement on those modified and added portions of the plan, the board of education of CSB 1 must readopt the final plan and forward it to the central board for inclusion in the central board's plan in accordance with 8 NYCRR 100.11. The central board is directed to submit such plan to the State Education Department for review pursuant to 8 NYCRR 100.11.

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