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Decision No. 13,614

Appeal of the BOARD OF EDUCATION OF THE HOOSICK FALLS CENTRAL SCHOOL DISTRICT from action of the Hoosick Falls Teachers Association regarding shared decision making.

Decision No. 13,614

(June 5, 1996)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for petitioner, John J. Toy, Esq., of counsel

James R. Sandner, Esq., attorney for respondent, Ira Paul Rubtchinsky, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Hoosick Falls Teachers Association ("respondent") to appoint teacher representatives to shared decision making building teams. The appeal must be dismissed.

On April 5, 1994, petitioner adopted its shared decision making plan in accordance with 8 NYCRR 100.11 after conducting negotiations with representatives from various stakeholder groups, including respondent. On May 2, 1994, the plan was reviewed and approved by the State Education Department. Petitioner's shared decision making plan establishes building teams at the elementary, middle and high school levels and maintains a district wide shared decision making committee. On August 15, 1995, the superintendent met with the then president of respondent's association and requested the names of teacher representatives to serve on the building committees.

Between August 22, 1995 and December 6, 1995, petitioner requested, both orally and in writing, the names of teacher representatives to serve on the building committees. In a memorandum dated December 6, 1995, petitioner's superintendent again requested the names of teacher representatives and informed respondent that a meeting of the district wide shared decision making committee would be held on December 13, 1995. By memorandum dated December 11, 1995, respondent's president informed the superintendent that the teachers association would not be making any appointment to the building teams but that the current representatives to the district wide committee would participate in the biennial review of the district's plan. The district wide committee met on December 13, 1995 and none of respondent's members were present. This appeal ensued.

Petitioner asks that I order respondent to appoint four teachers to participate in the elementary school building team, three to four teachers to participate in the middle school building team and four teachers to participate in the high school building team in accordance with the regulations. Petitioner also seeks to compel respondent to appoint members to the district wide shared decision making committee. Respondent contends that the Commissioner of Education lacks statutory authority to hear an appeal by a board of education from the actions of a collective bargaining association, and therefore lacks jurisdiction over this matter.

Before reaching the merits, I will address respondent's jurisdictional defense. Petitioner alleges that it is an aggrieved party within the meaning of the shared decision making regulation. That regulation states:

(e)(2) Any aggrieved party who participated in the development of the district plan may...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, subdivision (c) of this section and failure to provide within the district plan for meaningful participation in school-based planning and shared decision making within the intent of this section.

Petitioner then cites Education Law '310 which states:

Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same; and the commissioner of education may also institute such proceedings as are authorized under this article. The petition may be made in consequence of any action:

* * *

7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any act pertaining to common schools.

Petitioner argues that respondent is a "school authority" engaging in "official acts" concerning the shared decision making process and that, therefore, the Commissioner of Education has jurisdiction over the teachers association.

While I find this interpretation novel and creative, I disagree with petitioner that 8 NYCRR 100.11 and Education Law '310 permit me to order a collective bargaining organization to appoint teacher representatives to participate in shared decision making. A collective bargaining organization is not a "school authority" under Education Law '310 and I do not find persuasive the case cited by petitioner, where I exercised jurisdiction over an unincorporated association of school superintendents (Bd. of Ed. of Somers CSD v. Lower Hudson Council of School Superintendents, 140 Misc2d 1088). Therefore, I find that the appeal must be dismissed on jurisdictional grounds.

Turning to the merits, the record indicates that respondent participated in the development of petitioner's shared decision making plan. However, when respondent was asked for its list of representatives to serve on the building team and the district wide committee, respondent notified petitioner in a memorandum dated December 11, 1995 that it would not make any appointments of teacher representatives at that time. The district's shared decision making plan clearly calls for three teacher representatives to the elementary school building team, three to four representatives to the middle school building team and four representatives to the high school building team. It is apparent that respondent is obligated under the plan to appoint teacher representatives but has failed to do so. Its argument that the association's policy is to request volunteers instead of requiring participation is a poor excuse not to participate in petitioner's shared decision making plan.

In a previous appeal filed by respondent, Appeal of Wilson and Chapman, 33 Ed Dept Rep 79, I stated that the purpose of shared decision making is to foster communication among all parties involved in the critical job of educating our children. I again urge the parties to cooperate in implementing shared decision making in this school district.

THE APPEAL IS DISMISSED.

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