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Decision No. 13,425

Appeal of GREENBURGH ELEVEN FEDERATION OF TEACHERS from action of the Board of Education of the Greenburgh Eleven Union Free School District and Sandra Mallah as Superintendent regarding shared decisionmaking.

Decision No. 13,425

(June 7, 1995)

James R. Sandner, Esq., attorney for petitioner, James D. Bilik, Esq., of counsel

Shaw & Silveira, Esqs., attorneys for respondent, David S. Shaw, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the development, adoption and implementation of a shared decisionmaking plan by the Board of Education of the Greenbush Eleven Union Free School District ("respondent"). The appeal must be dismissed.

Petitioner is a union representing teachers and teaching assistants in the Greenburgh Eleven Union. The Greenburgh Eleven Union Free School District is a special act school district created by the Legislature for the sole purpose of providing educational services to students who reside or attend Children's Village, a not-for-profit institution. In November 1993, respondent formed a district-wide planning committee to develop a shared decisionmaking plan. On November 11, 1993, respondent named eight individuals who are administrators of Children's Village as parent representatives to the planning committee. On May 26, 1994, respondent adopted its shared decisionmaking plan, which was approved for completeness by the State Education Department on July 14, 1994. This appeal ensued.

Petitioner specifically alleges that the parent representative selected by respondent are not parents or otherwise appropriate representatives to the district-wide planning committee under the shared decisionmaking regulation. Petitioner also alleges that respondent altered the final plan before its adoption without the full participation of and consultation with all representatives. Respondent contends that as a procedural matter, the appeal is untimely. Respondent also contends that it appropriately selected parent representatives and adopted its shared decisionmaking plan.

Before reaching the merits, I will address a procedural issue raised by respondent. Respondent contends that the appeal is untimely since its shared decisionmaking plan was adopted on May 26, 1994 and the appeal was not commenced until October 6, 1994. Section 275.16 of the Regulations of the Commissioner of Education requires an appeal to be instituted within 30 days after the making of the decision or performance of the act complained of, provided that the Commissioner may excuse a delay in commencing an appeal for good cause shown (Application of Cox, 27 Ed Dept Rep 124).

The Commissioner's regulation section 100.11, which involves challenges to shared decisionmaking plans, states:

(e)(1) In the event that the board of education or BOCES fails to provide for consultation with, and full participation of, all parties in the development of the plan as required by subdivisions (b) and (d) of this section, the aggrieved party or parties may commence an appeal to the commissioner pursuant to section 310 of the Education Law. Such an appeal may be instituted prior to final adoption of the district plan and shall be instituted no later than 30 days after final adoption of the district plan by the board of education or BOCES.

(2) Any aggrieved party who participated in the development of the district plan may also appeal to the commissioner pursuant to section 310 of the Education Law from action of the board of education or BOCES in adopting, amending or recertifying the plan. The grounds for such an appeal may include, but shall not be limited to, noncompliance with any requirement of subdivision (c) of this section and failure to provide within the district plan for meaningful participation in school-based planning and shared decisionmaking within the intent of this section. (emphasis supplied)

Petitioner claims that even though its appeal was commenced more that 30 days from the adoption of the district's plan, the appeal is timely under 8 NYCRR 100.11(2). In the alternative, petitioner requests that its failure to commence this appeal in a timely fashion be excused in view of the newness of the regulation and the importance of the issue.

While I am sympathetic to petitioner's concerns, it is clear that the appeal is untimely and that there is no reasonable excuse for the delay. In fact, 8 NYCRR 100.11(e)(1) specifically states that any party that believes it did not fully participate in or was consulted on the plan has the right to appeal before final adoption of the plan or not later than 30 days after adoption of the plan. I do not agree with petitioner's interpretation that 8 NYCRR 100.11(2) permits the commencement of an appeal later than 30 days from the adoption of the plan. That regulation allows an appeal to be filed within 30 days from the adoption, recertification or amendment to the plan. Since the shared decisionmaking plan was adopted on May 26, 1995, the appeal was served on October 6, 1994, and the plan has not been subsequently amended or recertified, the appeal must be dismissed as untimely.

The petition must also be dismissed on the merits. Petitioner alleges that respondent's selection of parent representatives to the district-wide planning committee was inappropriate and that the individuals selected by respondent are not "parents" within the meaning of the regulation. The shared decisionmaking regulation provides for the selection of parent representatives to a district-wide planning committee by school-related parent organizations. Such parent representatives cannot be employed by the district or a collective bargaining organization representing teachers or administrators in the district. The regulation also provides that where there is no school-related parent organization, "parents shall be selected by their peers in the manner prescribed by the board of education" [8 NYCRR 100.11(b)]. The record in this case indicates that since respondent is a special act school district whose boundaries wholly encompass a residential facility, there are no school-related parent organizations to select representatives for the shared decisionmaking committee. Respondent instead appointed eight members recommended by the Children's Village Executive Team as parent members acting in loco parentis. In addition to those eight members, respondent included all natural and surrogate parents on the committee who expressed interest. Based on this record, I find that respondent acted appropriately in regard to the selection of parent representatives, given the unique circumstances of this district.

I have reviewed petitioner's remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE