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Decision No. 14,774

Appeal of KATHERINE A. McKENNA, LIN RAMSEY GOLASH and PAULA DRAKE from action of the Board of Education of the City School District of the City of Syracuse and Alternatives Unlimited, Inc., regarding a contractual education program.

Decision No. 14,774

(August 20, 2002)

James R. Sandner, Esq., attorney for petitioners, Mary Scalise Perillo, Esq., of counsel

Ferrara, Fiorenza, Larison, Barrett & Reitz, PC, attorneys for respondent Board of Education of the City School District of the City of Syracuse, Norman H. Gross, Esq., of counsel

Harris, Beach & Wilcox, LLP, attorneys for respondent Alternatives Unlimited, Inc., Alice Kryzan, Esq., of counsel

CATE, Acting Commissioner.--Petitioners, all of whom are residents and taxpayers of the City School District of the City of Syracuse ("district"), and one of whom is a parent of a student enrolled in the district, seek to annul a contract between the district and respondent Alternatives Unlimited, Inc. ("Alternatives"), and to annul the alleged delegation of alternative education instruction. The appeal must be sustained.

Beginning at least as early as 2000, the district became very concerned about dropout rates, "at-risk" students, and alternative education programs. The district"s superintendent formed study groups which looked at a variety of programs in other school districts and made certain recommendations. On February 15, 2001, respondent board adopted a resolution authorizing its superintendent to enter into a "pilot agreement" with Alternatives for the provision of educational services to certain former and particularly identified district students for the period February 15 through June 30, 2001. Following adoption of that resolution, the district and Alternatives entered into a contract effective from February 19 to June 30, 2001. Among other things, the contract contains these provisions:

1.01. Alternatives shall establish, conduct, manage, and maintain a course of instruction in general academic fields for former and particularly identified students who have been classified as neither emotionally disturbed nor severely behavior disordered (hereinafter the "Targeted Population").

1.02. Alternatives shall offer two types of programs: (1) Drop Back In " for students who are no longer attending school but wish to return and receive a diploma; and (2) Compensatory and remedial " for students who are suspended from regular instruction pursuant to Education Law "3214 or who can no longer attend the comprehensive high school due to other behavior issues.

. . .

1.03. Alternative"s program shall be known, at each of its facilities, as the Syracuse Alternative Learning Academy.

. . .

8.01. Alternatives shall be an independent contractor, and the employees of Alternatives shall not become employees of the District. No partnership is intended to be entered into by this Agreement.

After the Syracuse Alternative Learning Academy ("SALA") became operational, petitioners commenced this appeal on March 26, 2001. Their request for a stay was denied by letter dated April 6, 2001. In September 2001, during the pendency of this appeal, I was advised that on August 29, 2001, the board of education adopted a resolution authorizing its superintendent "to extend the pilot agreement with Alternatives Unlimited until June 30, 2002."

Petitioners contend that the board of education has no legal authority to contract for these instructional services. They further claim that uncertified teachers may be used to provide this instruction. They further argue that SALA, as operated by Alternatives, is neither a public school nor an approved charter school, and that the district has illegally contracted with a private school to provide public education. Finally, they argue that the district has not complied with ordinances of the City of Syracuse enacted pursuant to General Municipal Law ""103 and 104-b, regarding the procurement of goods and services.

Respondents claim that the board of education does have authority to obtain services in this matter, which services are merely supplemental, and that this is a pilot program of limited duration. Respondents further point out that the contract requires Alternatives to hire certified teachers, and argue that competitive bidding is not required under these circumstances. Respondent board further argues that the appeal is untimely.

Respondent board argues that the appeal is untimely because its resolution authorizing the contract was adopted on February 15, 2001, and the appeal was not commenced until March 26, 2001. I do not find the appeal untimely. If, as alleged in the petition, Alternatives may have used uncertified teachers to provide instruction, the appeal relates to a continuing practice, which, if unlawful, would constitute a continuing wrong subject to complaint at any time (Appeal of Nettles, 31 Ed Dept Rep 437, Decision No. 12,691; Appeal of Town of Smithtown, 28 id. 337, Decision No. 12,128; Matter of Baxter and Pickett, 21 id. 610, Decision No. 10,807). In any event, it is clear that the contract between the district and Alternatives was executed by both parties on March 2, 2001, and was not a contract prior to that date. I therefore find that this appeal, commenced March 26, 2001, is timely.

With respect to the legal authority of the board of education to enter into this contract, the parties have a fundamental disagreement as to the inherent authority of school districts. Respondent board of education takes the position in its brief that it "should be permitted to enter into the kind of contract at issue in this case so long as the contract does not violate any specific provisions of the Education Law or any other statutes." Petitioners, on the other hand, argue that "there exists no general authority for a board of education to contract with an independent contractor for instructional services," citing Matter of Friedman, 19 Ed Dept Rep 522, Decision No. 10,236.

I note that the courts of this State have on several occasions determined that a school district is a creature of statute and that a board of education has no inherent powers and possesses only those powers expressly delegated by statute or necessarily and reasonably implied therefrom (see, e.g., Matter of Flaminio v. Board of Education, Cleveland Hill UFSD, 97 Misc.2d 722; Matter of Leone v. Hunter, 21 Misc.2d 750; Matter of District No. 2, Town of Brookhaven, 214 AD 40; Matter of DeAngelis v. Laino, 235 AD 390, aff"d 260 NY 661.) The Commissioner of Education has arrived at the same conclusion (Appeal of Rosenkranz, 37 Ed Dept Rep 330, Decision No. 13,872; Appeal of Bode, 33 id. 260, Decision No. 13,043).

Respondent board relies on Education Law "1709(33) and several Appellate Division decisions for its position. Respondent cites Averback v. Board of Education, New Paltz Central School District (147 AD2d 152) for the proposition that a board of education has the power to contract unless a specific statutory provision prevents it. However, a careful reading of Averbach does not support that conclusion. The court stated, at page 154: "Absent a "plain and clear" prohibition in statute or decisional law, boards of education are empowered to agree to terms of employment"[emphasis added]. Averbach stands only for the proposition that a school district has general authority to enter into employment relationships, as it clearly does pursuant to Education Law "1709(16), not with respect to contracts in general. Respondent further relies on two cases which have allowed school districts to contract with private security firms, a function which is not central to a school district"s existence. Respondent further argues that the Education Department, for many years, has permitted school districts to contract with private driving schools for the provision of the behind-the-wheel portion of instruction in driver education classes, but fails to recognize that the legal authority for school districts to make such contracts is specifically conferred by statute, i.e., Vehicle and Traffic Law "507(1), and therefore not an inherent power of school districts.

Upon careful review of the record, I find petitioners" argument more convincing. Petitioners cite Appeal of Davis, 39 Ed Dept Rep 273, Decision No. 14,235; Matter of Spataro, 25 id. 206, Decision No. 11,549; and Matter of Lorber, 20 id. 227, Decision No. 10,387, in support of their argument that a school district may not use independent contractors "to replace public school employees." Respondents claim that these cases are inapplicable because they all involved the abolition of positions, which is not a factor in the case before me. Although the issue of abolition is absent, the cases cited by petitioner are instructive as to the purpose of the tenure laws where school districts have attempted to evade them.

In the case before me, there is no question that respondent board has attempted to contract with Alternatives in lieu of creating new positions to provide instructional services that it deems necessary or desirable. Respondent board has, in effect, created new instructional positions (cf., Mairs v. Board of Education, Highland Park UFSD, 82 Misc.2d 989; Appeal of Davis, 39 Ed Dept Rep 270, Decision No. 14,234; Appeal of Barbara P., 30 id. 198, Decision No. 12,432). When a new instructional position is created, Education Law "3012(1)(a) requires that that position be filled by making a probationary appointment. See, e.g., Matter of Durr, 15 Ed Dept Rep 442, Decision No. 9,237, aff"d sub nom. Board of Education, City School District of the City of Oneida v. Nyquist, 59 AD2d 76, rev."d 45 NY2d 975. Where personal services will be rendered of a non-instructional nature, a school district may have some ability to contract, at least with a not-for-profit corporation (Matter of Nicoletti, 21 Ed Dept Rep 38, Decision No. 10,590).

In the case before me, however, different circumstances are present. The contract between the district and Alternatives provides very clearly: "Alternatives shall establish, conduct, manage, and maintain a course of instruction in general academic fields . . ." This is clearly not a matter of contracting for peripheral services such as security services or a recreational program, but is the very core function of a school district, see, e.g., Education Law ""1709(13), 3202, and 3214. As such, respondent board lacks authority to attempt to provide such clearly instructional services through a contractual arrangement. As the Court of Appeals stated in Board of Education, Great Neck UFSD v. Areman (41 NY2d 527 at p.531: "Different from private matters where freedom to contract is virtually unlimited, public school matters are, from time to time, subject to restrictive policies which reflect governmental interests and public concerns."

Finally, I will address respondents" claim that the contract should be permissible because it merely creates a "new pilot program" of limited duration intended to "supplement existing services and programs" without abolishing any positions, and therefore may be analogous to Appeal of Barbara P. (supra). The argument that this is merely a limited "pilot program" clearly fails, in that respondent has, during the pendency of this appeal, extended the contract for a full year, to the end of the 2001-2002 school year. With respect to the concept of supplementary services, in Appeal of Barbara P., the Commissioner dealt with a situation where drug and alcohol counseling was provided by contract, but the Commissioner found that "the services offered by respondent in its drug assistance program served to supplement the existing guidance program rather than supplant it" (30 Ed Dept Rep at p.202). Implicit in this finding is a determination that the drug and alcohol counseling services were rather similar to the existing counseling services, and that the programs were intended to work in conjunction with each other. Here, while respondent claims these new programs "supplement" existing programs and services, it appears from the record that the SALA is a new program offering new services, and which is not connected in any way to the existing alternative education programs found within the district. Under such circumstances, I do not regard these new services as supplementary. The other major factors present in Appeal of Barbara P., i.e., the existence of a federally funded program to allow school districts to develop innovative prevention and counseling programs, and complementary state legislation that encouraged the use of community based groups to provide such services, are clearly lacking in the matter before me. I therefore find that the contractual arrangement made by the district and Alternatives does not fall within the narrow exception described in Appeal of Barbara P.

I wish to emphasize here that I do not find fault with the idea of creating the programs which the district has initiated. Indeed, the district"s objectives are laudable. However, I must find that the district does not have the authority to accomplish these goals in the manner it has elected.

In view of this disposition, it is unnecessary to consider the other claims advanced by the parties.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the contract between the City School District of the City of Syracuse and Alternatives Unlimited, Inc., and its current extension, is hereby annulled.

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