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Decision No. 13,404

Appeal of COUNCIL OF SUPERVISORS AND ADMINISTRATORS, by its President, DONALD SINGER, LEONARD GOLUBCHICK AND PHILIP NASTASI from action of the Board of Education of the City School District of the City of New York, Ramon Cortines, as Chancellor of the New York City School District, Community School Board 1 and Community School Board 14 regarding adoption of shared decisionmaking plans.

Decision No. 13,404

(April 13, 1995)

Bruce K. Bryant, Esq., attorney for petitioners

Hon. Paul A. Crotty, Esq., Corporation Counsel, attorney for respondents, Ellen Ravitch, Esq., of counsel

SOBOL, Commissioner.--Petitioner Council of Supervisors and Administrators (CSA) is the exclusive bargaining representative, pursuant to Article 14 of the Civil Service Law, for all principals, assistant principals and other pedagogical supervisors and administrators in the New York City School District. Petitioner Donald Singer is the president and chief executive officer of the CSA. Petitioner Leonard Golubchick is a principal in Community School District ("CSD") 1 and serves as the CSA district chairperson for district 1. Petitioner Philip Nastasi is an elementary school principal in CSD 14 and serves as the CSA district chairperson for district 14.

Petitioners appeal the adoption of shared decisionmaking plans by Community School Board ("CSB") 1 and CSB 14 and the incorporation of those plans into the plan of the New York City Board of Education ("central board"). Specifically, petitioners object to the manner in which the final version of the plan was developed and adopted by CSB 1. They also object to the content of the plan adopted by CSB 14. The appeal must be sustained in part.

Actions of CSB 1

On December 14, 1993, CSB 1 convened the first meeting of the planning committee pursuant to 8 NYCRR 100.11 to develop a plan for the participation by teachers, parents and school administrators in school-based planning and shared decisionmaking. A second meeting was scheduled for December 20. The committee subsequently recommended a plan to CSB 1, which held a public working session to discuss the recommendations on December 21, 1993. At that session, CSB 1 approved a proposed plan which contained modifications to some parts of the planning 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 working session, Dolores Shaefer, chairperson of CSB 1, informed individual members of the planning committee that CSB 1 had approved a proposed plan which contained modifications and additions to the recommended plan submitted by the committee. The letter enclosed the revised plan, advised that the plan would be voted upon on January 5, 1994 and stated that "we encourage your further comments." CSB 1 adopted the final plan, as modified on December 21, at the January 5, 1994 meeting.

On January 13, petitioner Golubchick, newly elected CSA representative for CSD 1, submitted a letter to Neil Lefkowitz, field director of the CSA, objecting to the plan adopted by CSB 1 and requesting that the central board reject the plan. Petitioner Golubchick claimed that the CSB had made changes to the plan without consulting with the planning committee and that the CSA could not accept those changes. On January 18, 1994, the field representative sent petitioner's January 13, 1994 letter to the Chancellor's representative asking her to reject CSD 1's plan.

On January 18, 1994, the chairperson of CSB 1 forwarded CSD 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 parents organization endorsed the plan.

Actions of CSB 14

In CSD 14, a planning committee developed a shared decisionmaking plan in December 1993. The plan was endorsed by all members of the planning committee except petitioner Nastasi. Petitioner objected to two sections of the plan entitled "What are the means by which all parties will be accountable for the decisions that they share in making?" and "What is the process for the dispute resolution?"

On December 22, 1993, petitioner Nastasi faxed a memo to the State Education Department ("SED") explaining why he was withholding the administrators' endorsement of the plan. The other committee members faxed a response memo on December 23, 1993, stating their disagreement with petitioner's position. Petitioner then informed the CSA field representative on January 12, 1994 of his decision to withhold endorsement. On January 18, 1994, the field representative sent petitioner's January 12, 1994 letter to the Chancellor's representative asking her to reject CSD 14's plan.

The CSB adopted the plan on February 16, 1994 over the objection of the administrators' representatives on the planning committee.

Actions of the Chancellor and central board

Both CSB 1 and 14 submitted their plans to the central board for incorporation into the central board's plan in accordance with 8 NYCRR 100.11(b). Petitioners Golubchick and Nastasi objected to their respective district's plans in the letters forwarded to the Chancellor's representative by the CSA field representative on January 18, 1994. They term these communications to the Chancellor "appeals." Respondents did not respond to those letters.

On February 24, 1994, the central board adopted the plans for CSDs 1 and 14 without comment or amendment, and transmitted them, along with others, to the Commissioner. The SED approved CSD 1's plan on April 4, 1994 and CSD 14's plan on April 6, 1994. This appeal ensued. On February 7, 1995, the Commissioner of Education heard oral argument by the parties to this appeal.

CSD 1

Petitioners contend that CSB 1 violated '100.11(d)(1) and acted arbitrarily and capriciously when it unilaterally modified and added to the plan submitted by the planning committee without further consultation with and participation of the planning committee and without seeking the endorsement of the planning committee. Petitioners allege that the resulting plan adopted by CSB 1 on January 5, 1994, fails to comply with '100.11(c) because it fails to provide all parties with meaningful participation in school-based planning and shared decisionmaking.

Petitioners allege that respondent substantially altered the shared decisionmaking plan developed by the district committee and failed to seek its endorsement of the revised plan before its final adoption. There is no dispute that petitioners participated fully in the development of the plan. However, the issue is whether further consultation with and participation of the committee was necessary before the plan could be approved and whether respondent's December 22, 1993 letter informing the planning committee of the changes to the plan and encouraging further comments constituted "seeking endorsement" of the modified plan.

Respondents contend that the petition fails to state a cause of action and should be dismissed. They also contend that they complied fully with the requirements of '100.11 in adopting CSD 1's plan. Respondents allege that the method of CSB's adoption of a final plan complied with the requirements of '100.11 to develop a plan in consultation with a planning committee and seek the endorsement of the committee members. Respondents claim that petitioners' comments and endorsement of the final plan as modified were sought. They maintain that the December 22, 1993 letter from the chairperson of CSB 1 was a sufficient method of seeking endorsement since it informed members of the planning committee of the modifications to the plan approved by the CSB and encouraged further comments. Respondents further assert that the planning committee also had opportunities to comment at the public working session of December 21 and before a vote was taken at the January 5, 1994 public meeting.

These issues and facts are substantially the same as those contained in Appeal of United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO ("UFT") , 34 Ed Dept Rep _____, Decision No. 13403, dated April 13, 1995, which was also argued before me on February 7, 1995. The only difference in the record between the cases is that in the UFT case, the record shows that some committee members did not receive sufficient notice of the December 21 public working session in time to comment. Also in that case, since the December 22, 1993 letter was sent during the holidays, the record showed that committee members had only 9 business days and 3 school days to discuss the changes. Although those facts concerning notice were not developed in this case, I must nevertheless sustain petitioners' claim in the instant case as I did in the earlier case.

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:

be adopted by the board of education ... at a public meeting after consultation with and full participation by the designated representatives of the administrators, teachers, and parents, and after seeking endorsement of the plan by such designated representatives....

As I determined in Appeal of UFT, supra:

...[t]he procedure CSB 1 used to adopt its shared decisionmaking plan did not conform with '100.11. On December 21, 1993, CSB 1 modified and made additions to the plan which was recommended by the planning committee. 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, and CSB 1 did invite further comments, I find that these changes were significant enough to merit further discussion by the planning committee.

The process used by CSB 1, however, did not provide for a meaningful opportunity for further discussion. Although a board only has to seek, not obtain, endorsement prior to approving a plan (Appeal of Passino, 34 Ed Dept Rep 6), the plan can only be adopted after "consultation with and full participation of" the designated representatives.

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. This process vitiated the possibility of thoughtful consideration and debate required by the regulations (Appeal of Passino, supra).

Moreover, the record indicates that CSB 1 convened both of the meetings of the planning committee. It was reasonable, therefore, for the planning committee to expect that CSB 1 would schedule another meeting for it to consider the changes. Therefore, I find that CSB 1 adopted the plan without "consultation ... and full participation of" the designated representatives. Accordingly, CSB 1 must present that portion of the plan that it unilaterally adopted to the planning committee for its consideration.

Accordingly, petitioners' claim that the CSB failed to adequately seek its endorsement of the revised plan before its final adoption is sustained.

CSD 14

Petitioners contend that CSB 14 violated '100.11 and acted arbitrarily and capriciously when it adopted the district plan over the objection of the CSA representatives on the planning committee. They also allege that the adopted version of the plan gives the superintendent discretion to veto or override the plan and thus vitiates the participants' meaningful participation at the school level in school-based planning as required by '100.11(c). In addition, they claim that the plan specifically violates '100.11(c)(5) by failing to provide a process for dispute resolution at the local level.

Petitioner Nastasi objected to the following language under the heading "What are the means by which all parties will be accountable for the decisions that they share in making?:"

At any time if the Superintendent believes that the plan is not succeeding, he maintains the right to direct the principal to reconvene the planning team and alter or reconstruct a different plan.

Nastasi argued that review and approval authority should not be vested solely with the superintendent and that giving the superintendent the power to veto the plan is inconsistent with the requirement of the regulations that participants at the school level have meaningful participation in school-based planning. He wanted the district committee to review and approve individual school plans.

The other committee members argued that the superintendent has the right to ask the committee to alter or reconstruct the plan since the superintendent has supervision and direction over the enforcement and observation of the course of study in accordance with Education Law ''1711 and 2508.

Petitioner also objected to the following language under the heading "What is the process for the dispute resolution?:"

In the event that there is a substantive dispute, the committee should: revisit the issue at a later date; mediate the differences among the members; and/or invite a district office facilitator to assist in the mediation.

The District Planning Committee can serve as an informal resource in helping schools to resolve differences. However, the district considers it essential to the success of cooperative planning at the school level for differences to be resolved at that level.

Petitioner Nastasi argued that the ultimate responsibility of the principal to resolve disputes must be specifically enumerated. He had argued to include in the plan the following:

"If by the close of 3 meetings, consensus cannot be reached, the Principal will have the right and responsibility to make that decision in his/her role, apart from the Committee.

This was rejected by other representatives on the committee. They argued that it was the committee's intention to leave it for each school team to decide what is best for each particular school.

Respondents contend that the plan adopted by CSB 14 fulfills the requirements of '100.11. They assert that the plan provides school-level participants with meaningful participation in school-based planning and a process by which disputes can be resolved at the local level.

Petitioners' claims must be sustained in part. Petitioners first argue that because the CSA representative on the committee did not fully agree on all elements of the plan, the CSB's adoption of that plan violated '100.11(d). However, there is no requirement that all committee members agree to all aspects of the plan (Appeal of St. Victor, 33 Ed Dept Rep 679). The regulation requires only that a board of education seek the endorsement of a plan after the committee has had an opportunity to consult and fully participate in the plan's development. Since the committee, including petitioner Nastasi, had an opportunity to consult and participate in the development of the plan and the CSB sought the committee's endorsement, respondent CSB 14 complied with that requirement of '100.11(d). Accordingly, that portion of petitioners' claim is dismissed.

As for the section on dispute resolution, although petitioner Nastasi disagrees with the planning committee's language, the plan provides an adequate basis for dispute resolution at the school level and thus complies with '100.11. However, the section on accountability which permits the superintendent to direct the principal to reconvene the planning team and alter or reconstruct the plan in essence gives the superintendent veto power over the plan. Vesting such power with the superintendent violates the regulation. Moreover, the language at issue is so vague and expansive that it provides no guidance or standards on how to determine whether the plan is succeeding. It also has the potential to circumvent dispute resolution at the school level because, as presently constructed, anyone could make a claim to the superintendent without going through the school-based team. Accordingly, petitioner's claim regarding accountability is sustained, and the CSB must return that portion of the plan to the planning committee for reconsideration.

Chancellor and central board

Finally, petitioners contend that the Chancellor and central board violated '100.11 and acted arbitrarily and capriciously when they failed to review the plans submitted by CSDs 1 and 14 and then submitted the flawed plans for CSDs 1 and 14 to the Commissioner as part of the central board's plan. Respondents argue that the petition fails to state a cause of action and that they complied fully with the requirements of '100.11 in adopting CSD 1 and 14's plans.

Section 100.11(b) addresses the roles of the central board, community school districts and high school superintendencies in the shared decisionmaking process. Specifically, '100.11(b) provides in part:

In the City School District of the City of New York, each board of education of each community school district and each high school superintendency shall develop a plan in the manner prescribed by this subdivision, and each such plan shall be incorporated into a plan by the central board of education, which plan shall comply with this section.

This section requires the central board to include the plans of the community school districts and high school superintendencies into a single plan.

Following a June 2, 1993 State training session on the shared decisionmaking process, Assistant Commissioner Samuel Corsi sent a letter to the City Executive Director of Instruction and Professional Development responding to questions raised at the June 2 session. He stated that in adopting the City's plan, the central board should incorporate the CSD plans without modification, except where a CSD plan addresses areas within the exclusive domain of the central board. 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 only where it addresses areas within the exclusive domain of the central board. Apart from those changes, the CSD's plan must be incorporated.

Accordingly, since the issues complained of do not appear to be matters within the exclusive domain of the central board, the central board complied with '100.11 by incorporating the plans, unchanged, into the plan submitted to the State Education Department. Accordingly, petitioners' claims against the Chancellor and the central board are dismissed.

Although petitioners' claims are dismissed, it appears that the Chancellor and the central board have failed to develop, or at least failed to disseminate, procedures for reviewing CSD plans, acknowledging or responding to grievances or appeals, or reaching consensus on disputed issues. Since these shared decisionmaking plans are subject to biennial review, the State Education Department will continue to work with the Chancellor and central board to provide technical assistance regarding the implementation of '100.11.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent CSB 1 submit to the planning committee for its review the plan which it previously sent to the central board with modifications and additions. After fully consulting with the committee and seeking its endorsement on those portions of the plan, the board of education of CSD 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.

IT IS FURTHER ORDERED that respondent CSB 14 submit the plan which it previously sent to the central board to the planning committee for it to revise the sections of the plan concerning accountability. After fully consulting with the committee and seeking its endorsement on those revised portions of the plan, the board of education of CSB 1 must act on the final plan and, when appropriate, 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.

IT IS FURTHER ORDERED that the central board is directed to submit its plan which includes the revised plans of CSD 1 and 14 to the State Education Department for review pursuant to 8 NYCRR 100.11.