Appeal of EDITH LEET from action of the Board of Education of the City School District of the City of Albany regarding shared decisionmaking.

Decision No. 14,844

(March 7, 2003)

 

Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Albany (“respondent”) to approve the 2002 biennial review of its shared decisionmaking plan. The appeal must be dismissed.

Respondent’s initial shared decisionmaking plan included a District-wide Shared Decisionmaking (“DSDM”) Committee. Beginning with the 1999-2000 school year, respondent moved to a comprehensive district educational planning (“CDEP”) process that included a district committee. Respondent then formed a Shared Decisionmaking Review Committee, which was charged with advising the DSDM committee and the superintendent on how best to revise the shared decisionmaking process to accommodate the CDEP committee. In its January 19, 1999 report, the review committee recommended that the CDEP committee become the “core” committee, with open access to stakeholders from the DSDM committee, and that the DSDM committee become inactive until a revised plan was needed. The DSDM committee concurred with the first recommendation.

Respondent discussed the review committee’s recommendations at its July 6, 1999 meeting. The minutes state:

The Superintendent reported that the Comprehensive District Educational Planning Committee and the District-wide Shared Decision Making Committee basically have the same type of function to oversee the involvement in the shared decision making process for academic improvement in the District. Since there was a conflict in responsibilities, a District-wide Shared Decision Making Review Committee was established and reviewed the status of the DSDMC. Following this process, their recommendations were reviewed by the original District Shared Decision Making Committee. As a result of this series of meetings, a recommendation was made to combine the two committees and work in the same direction and consensus was reached on said recommendation. A modified plan will be developed that incorporates the findings of each committee. This plan will be presented to the Board at its August meeting.

Apparently the modified plan was not presented to respondent in August. At its November 3, 1999 meeting, respondent approved use of the CDEP committee to create a subcommittee to conduct a biennial review of the district’s shared decisionmaking plan. Respondent’s resolution called for the CDEP committee to review the subcommittee’s recommendations and submit final recommendations to respondent by January 15, 2000.

Petitioner served as a community representative on the subcommittee chaired by the assistant superintendent for instruction. At the subcommittee meeting on June 8, 2000, the chair presented a proposed shared decisionmaking plan that eliminated all references to the DSDM committee. Petitioner asserts that the subcommittee did not reach consensus on the elimination of the DSDM committee and notes that no teacher representatives were present.

Apparently the chair continued to seek the endorsement of stakeholder groups but the biennial review and revised plan were not made final during 2000. On April 16, 2002 the chair forwarded a draft “2002 Biennial Review,” which was based on the work of the subcommittee in 2000, to the superintendent. This document included the revised plan that eliminated all references to the DSDM committee. Representatives of administrators, teachers and parents endorsed the 2002 biennial review. Respondent discussed the biennial review at meetings on April 25 and May 7, 2002. At the May 7 meeting, respondent requested several changes to the revised plan. The assistant superintendent for instruction made the proposed changes and obtained the approval of the representatives who had previously endorsed the revised plan. Respondent approved the biennial review on May 16, 2002. By letter dated May 23, 2002, the State Education Department notified respondent that it had approved the biennial review. This appeal ensued.

Petitioner alleges that respondent’s approval of the 2002 biennial review violated governing regulations. She contends that respondent failed to provide for consultation with and full participation by designated representatives and failed to submit the review to the State Education Department in the same year the review was conducted. She also argues that respondent misrepresented the date of the review and her role by listing her as a member of the 2002 review committee. She asks me to direct respondent to reconvene the 2000 biennial review committee to conduct a new review and to prohibit the superintendent’s representative from serving as the committee chair.

Respondent argues that it complied with governing regulations, which it contends permit it to adopt the biennial review without petitioner’s agreement. Respondent also asserts that the appeal is untimely and moot, that petitioner has failed to join necessary parties, and that the Commissioner of Education lacks jurisdiction to review a plan that has been approved by the State Education Department.

An appeal to the Commissioner of Education pursuant to Education Law §310 must be commenced within 30 days of the action or decision complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16). Petitioner’s claim is untimely to the extent that she challenges respondent’s failure to complete a biennial review of its shared decisionmaking plan in 2000 and the procedures it employed in attempting to complete that review. Respondent contends that the entire appeal is untimely because petitioner challenges what respondent describes as its July 1999 decision to eliminate the DSDM committee. Respondent’s July 7, 1999 meeting minutes, however, do not reflect final action. Rather, they state that a plan to combine the DSDM and CDEP committees will be presented at a future meeting. Petitioner commenced this appeal within 30 days of respondent’s May 17, 2002 adoption of the biennial review, which included a modified shared decisionmaking plan. Section 100.11(e) of the Commissioner’s regulations specifically provides that an appeal alleging that a plan was modified without consultation and full participation of all required parties may be brought within 30 days of final adoption of the plan. Accordingly, I will not dismiss the appeal as untimely.

The appeal, however, must be dismissed on the merits. In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (8 NYCRR §275.10) and the burden of establishing the facts upon which she seeks relief (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep ___, Decision No. 14,702; Appeal of L.S., 41 id. ___, Decision No. 14,683). Petitioner has failed to meet that burden. She has not demonstrated that the 2002 biennial review did not comply with governing regulations, which require each board of education to develop and adopt a district plan for school-based planning and shared decisionmaking (8 NYCRR §100.11). Such district plan shall be developed in collaboration with a committee composed of the superintendent of schools, administrators, teachers and parents (8 NYCRR §100.11[b]). Furthermore, the plan may only be adopted “after consultation with and full participation by” these designated representatives and after “seeking endorsement of the plan” by the designated representatives (8 NYCRR §100.11[d][1]). In addition, the district's plan shall be reviewed biennially by the board of education in accordance with the above described process (8 NYCRR §100.11[f]).

In conducting its 2002 biennial review, respondent sought and obtained the participation and endorsement of the representatives identified in §100.11 of the Commissioner’s regulations. That provision does not prohibit revisiting modifications suggested in earlier years, nor does it require that representatives of all groups who participated in the review agree with every modification (see, Appeal of Lawrence Teachers’ Association, 39 Ed Dept Rep 119, Decision No. 14,190).

In light of this determination, I need not discuss the parties’ remaining contentions.

 

THE APPEAL IS DISMISSED.

END OF FILE