Decision No. 13,729
Appeal of HELENE C. CALDWELL, on behalf of ALPHONSO ANTONIO CALDWELL and UNIQUE LEONARD HOLMES, and ALBERTA MORGAN, on behalf of BRENTON LOTZ, from action of the Board of Education of the City School District of the City of New York; Rudolph Crew, Chancellor; and Marjorie Blum, Acting Director of the Office of Budget Operations and Review regarding funding.
Decision No. 13,729
(January 8, 1997)
Community Service Society of New York, Juan Cartagena and Jonathan Feldman, Esqs., of counsel; Puerto Rican Legal Defense and Education Fund, Sandra Del Valle, Esq., of counsel; The Legal Aid Society, Civil Appeals & Law Reform Unit, Donna Lee, Esq., of counsel; The Legal Aid Society, Harlem Neighborhood Office, Adriene Holder, Esq., of counsel; attorneys for petitioners
Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Martha A. Calhoun, Esq., of counsel
MILLS, Commissioner.--Petitioners challenge respondents' formula for distributing funds for support personnel among its 32 community school districts in the 1995-96 school year. The appeal must be dismissed.
Petitioner Helene C. Caldwell appeals on her own behalf and on behalf of her children, Alphonso Antonio Caldwell and Unique Leonard Holmes, who attend Community School District 13. Petitioner Alberta Morgan, appeals on her own behalf and on behalf of Brenton Lotz, who attends Community School District 5, for whom she is a surrogate parent. Petitioners also claim to bring the appeal on behalf of the class of parents whose children attend schools with allegedly high concentrations of poor and minority students and which allegedly receive disproportionately low allocations of funds pursuant to the district's "supporting percent allocation" formula. Petitioners contend that this formula violates the Education Law and disadvantages poor and minority students.
The 1995-96 $1.8 billion Community School District General Education Tax Levy Budget was distributed through a variety of allocations, each with its own distribution formula. Of this amount $1.3 billion was distributed through the "base allocation" to pay teacher salaries. Each community school district's base allocation equals its average teacher salary multiplied by the number of teachers it requires. Both parties agree that forces out of the control of the community school district dictate the amount of teacher salaries which are incurred, such as class size requirements and contract provisions which enable more experienced, more highly paid teachers to select more desirable schools.
The "supporting percent allocation" formula distributed an additional $117 million of the $1.8 billion. This formula provided each community school district with a supplemental appropriation equal to 8.7 percent of its base allocation -- 5 percent for additional teachers required due to "breakage" (which occurs when the number of students do not divide evenly into required class sizes) and 3.7 percent for school support staff (principals, assistant principals, guidance counselors, school secretaries, and school aides).
Petitioners contend that this "supporting percent allocation" formula fails to comply with section 2590-i(7)(a) of the Education Law, which provides in pertinent part:
Upon the final adoption of the appropriation for the city district in each year, the city board through the chancellor shall allocate among the community boards the funds appropriated in the units of appropriation for the programs or activities of such boards on the basis of objective formulae established annually by the city board . . . such formulae shall reflect the relative educational needs of the community districts to the maximum extent feasible.
Petitioners argue that no educational needs are reflected in the "supporting percent allocation" formula and that is feasible to do so. Petitioners further argue that since more desirable schools attract more highly paid teachers, calculating the "support percent allocation" as a percent of the "base allocation" provides more dollars per child for support staff in those schools. They contend that the less desirable schools have greater educational needs, requiring more support staff, not less. Petitioners provide analyses and expert statements in support of their position. They also quote a 1993 memo by Leonard Hellenbrand (respondent Marjorie Blum's predecessor) which states: "Since salaries of support staff (e.g., principals, guidance counselors) are not a function of district average teacher salary, we agree that allocating funds for administrative costs based on district average salary is inequitable."
Respondents argue that the system of formulas should be viewed as a whole. They argue that the supporting percent allocation is only one formula, that other formulas specifically recognize special needs students, and that the system of formulas meets the relative needs of the children to the maximum extent feasible. Respondents also defend their position by indicating that they have reduced the supplemental allocation for support staff from an amount equal to 5 percent of the base allocation in 1993-94 to an amount equal to 3.7 percent of the base allocation for 1995-96. Respondent's finally argue that petitioners have not demonstrated that their actions were arbitrary, capricious or an abuse of discretion and that the Commissioner's intervention would impinge on the control and discretion granted by statute to the board to devise the formulas. Respondents also argue that the appeal is untimely.
I must dismiss the appeal because it is untimely. The petition is dated March 1, 1996. Although the exact date on which the formulae were adopted is not clear from the record, they were in place and took effect on July 1, 1995, eight months before this action was commenced. An appeal to the Commissioner of Education must be brought within 30 days of the making of the decision or act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). Petitioners argue that the 30-day time period does not apply because this is an ongoing wrong, and therefore subject to complaint at any time. I disagree. The act which is being challenged is the establishment of the formulae -- in that they do not reflect relative educational needs to the maximum extent feasible, as required by the statute. Once the formulae are established and the allocations are calculated, there is no ongoing wrong. Respondents' actions are analogous to the improper awarding of a contract (Appeal of National School Bus Service, Inc., 28 Ed Dept Rep 48), an improper determination of a boundary (Appeal of Board of Educ., Fort Edward Union Free School Dist., 33 Ed Dept Rep 457), or bond vote irregularities (Appeal of Bach, 32 Ed Dept Rep 273), which are not ongoing wrongs, even though each has a continuing effect. Furthermore, this situation can be distinguished from continuing wrongs, such as where a contingency budget is adopted and spending on noncontingent items continues throughout the year (Appeal of Aarseth, 32 Ed Dept Rep 506) or where uncertified teachers are hired and then remain employed by the district (Appeal of Nettles, 31 Ed Dept Rep 437). While I am dismissing the appeal on procedural grounds, I urge respondents to carefully review the district's fund allocation formulae to ensure its compliance with the Education Law in the future.
THE APPEAL IS DISMISSED.
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