Appeal of THE TOWN OF NEW WINDSOR and GEORGE J. MEYERS from action of Robert J. Hanna, District Superintendent of Schools for the Sole Supervisory District of Orange-Ulster Counties and the Board of Education of the Enlarged City School District of the City of Newburgh regarding formation of a new school district.

 

Decision No. 15,408

 

(May 17, 2006)

 

Philip A. Crotty, Esq., attorney for petitioners

 

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent Robert J. Hanna, Daniel Petigrow, Esq., of counsel

 

Shaw & Perelson, LLP, attorneys for respondent Enlarged City School District of the City of Newburgh, Beth L. Sims, Esq., of counsel

 

MILLS, Commissioner.--Petitioners appeal the decision by Dr. Robert J. Hanna, District Superintendent of Schools for the Sole Supervisory District of Orange-Ulster Counties ("Hanna"), denying petitioners' request to form a new school district.  The appeal must be dismissed.

The facts involved in this appeal are stated in two prior decisions of the Commissioner of Education and will not be repeated (Appeal of the Town of New Windsor, 44 Ed Dept Rep 258, Decision No. 15,166; Appeal of the Town of New Windsor, 43 id. 56, Decision No. 14,915).  In those cases, I dismissed appeals brought by petitioner Town of New Windsor for the same relief sought here.

After dismissal of its second appeal on January 31, 2005, the Town Board of the Town of New Windsor ("Town") on July 5, 2005, resolved:

NOW, THEREFORE, BE IT RESOLVED that the Town Board of the Town of New Windsor authorize any member of the Town Board residing in the portion of the Town in the Newburgh District on their individual behalf and on behalf of the residents of the Town within the Newburgh District to submit a new petition to the District Superintendent of Schools for the Sole Supervisory District of Orange-Ulster Counties (BOCES) requesting formation of a New Windsor School District under New York State Education Law Section 1504.1 or otherwise for the portion of the Town within the Newburgh District; and if that if [sic] the request is denied by the District Superintendent of BOCES, to pursue an appeal to the Commissioner of Education for the same relief; and if that request is denied, to pursue judicial review and legislative action.

On or about August 23, 2005, petitioner Meyers, Supervisor of the Town, presented a "petition" to respondent Hanna which read in pertinent part:

WHEREFORE, the Town of New Windsor respectfully requests that the District Superintendent of Schools for the Sole Supervisory District of Orange-Ulster Counties, exercise his authority under NYS Education Law, Section 1504.1 and form a New Windsor School District constituting the portion of the Town of New Windsor presently in the Newburgh Enlarged City School District.

In the Town's second appeal, the Town's attorney by letter dated December 10, 2003, requested the same relief:

Re: PETITION TO FORM NEW WINDSOR SCHOOL DISTRICT OUT OF NEWBURGH ENLARGED CITY SCHOOL DISTRICT NYS EDUCATION LAW, SECTION 1504.1

. . .

The new district will be known as the New Windsor Central School District or Union Free School District.  It will be formed from the territory of the Newburgh Enlarged City School District, which is wholly within the geographic area served by the Orange-Ulster Board of Cooperative Educational Services.

Respondent Hanna's attorneys replied with a letter dated September 7, 2005, with respect to the August 23, 2005 "petition," again denying the request for formation of a new school district.

This appeal was commenced by service upon Hanna on October 4, 2005, and by service upon the district clerk of the Enlarged City School District of the City of Newburgh ("Newburgh") on October 6, 2005.

Petitioners contend that Education Law �1504(1) authorizes Hanna to remove that portion of the Newburgh district, which is within the Town of Windsor, and create a new school district with that territory.

Respondents contend that a district superintendent does not have such authority, and also present several affirmative defenses, including a contention that the Commissioner of Education has exclusive authority to form enlarged city school districts, that other school districts are necessary parties to this appeal, and that this appeal is untimely.  Petitioners have not served a reply to these affirmative defenses (8 NYCRR �275.14).

In 1947, the Legislature enacted a major revision of the Education Law  (L 1947, c 820).  Title I contained general provisions.  Title II was entitled "School District Organization Outside of Cities" (emphasis added) and contained Articles 31 (beginning at �1501) through 45 (ending at �2217).  Article 31, entitled "School Districts" and Article 45, entitled "Supervisory Districts," were thus both contained within Title II.  Title III, entitled "City School Districts," at that time contained Articles 51 and 53. 

In 1947, �1501 provided:

All school districts organized either by special laws or pursuant to the provisions of a general law are hereby continued.  Common school districts and union free school districts so organized may be altered or dissolved as provided in this article.  Central school districts may be organized under and are subject to the provisions of article thirty-seven.  Central high school districts may be altered under and are subject to the provisions of article thirty-nine.

Section 1504 provided:

1. A district superintendent may organize a new school district out of the territory of one or more school districts which are wholly within his supervisory district, whenever the educational interests of the community require it.  If there is an outstanding bonded indebtedness chargeable against the district or districts out of the territory of which such new district is organized, the district superintendent shall apportion said indebtedness between such new district and the remaining portion of the district or districts out of which such new district is organized, according to the assessed valuation thereof, and the portion of the indebtedness so apportioned shall become a charge for principal and interest upon the respective districts as though the same had been incurred by said districts separately.

2.  The district superintendents of two or more adjoining supervisory districts, when public interests require it, may form a joint school district out of the adjoining portions of their respective districts.

Aside from a minor amendment in 1994 to subdivision 1 and the addition of subdivision 3 in 1997, the substance of �1504 today is essentially the same as it was in 1947.  It is also clear from the structure of the statute as enacted by the Legislature in 1947 that �1504 and the other sections of Article 31 applied only to school districts outside of cities.

In 1950, the Legislature (L 1950, c 762, �28) added two new sections to Article 31:  �1531 ("Consolidation with city school district" now �1524), and �1532 ("Alteration of boundaries of city school district" now �1525).  In 1952, the Legislature (L 1952, c 810, �1) added an additional section to Article 31: �1533 ("Enlarged city school districts" now �1526).

The most significant feature of these three sections is that they authorize only the Commissioner of Education to act with respect to city school districts.  There is nothing in these sections that even mentions a district superintendent with respect to city school districts.  I therefore conclude that, with respect to city school districts and enlarged city school districts, the Legislature intended that only the Commissioner of Education would be involved in consolidation, alteration of boundaries, or creation of new enlarged city school districts, and that district superintendents would have no role at all in this area.

In 1953, the Legislature (L 1953, c 878, �15) again changed the structure of Titles II and III.  Thereafter, the heading for Title II no longer contained the words "Outside of Cities."  In addition, the heading for Title III was repealed, and the city school district Articles which previously appeared in Title III were added to Title II.

During these periods of substantial revision and reorganization of the Education Law, the Legislature had every opportunity to confer upon district superintendents the authority to address matters involving city school districts and enlarged city school districts, but it did not do so, and it has not done so since that time.  I therefore conclude that District Superintendent Hanna lacks the authority to remove any portion of the Newburgh Enlarged City School District to form it into a new district, or for any purpose. 

In view of this disposition, and the fact that petitioners rely entirely on Education Law �1504 as their authority for this appeal and claim for relief, I have considered the parties' other procedural contentions and I find that they lack merit.

 

THE APPEAL IS DISMISSED.

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