Decision No. 15,523
Appeal of JAMES DELLO from action of the Board of Education of the Wellsville Central School District regarding shared decision-making.
Decision No. 15,523
(February 2, 2007)
Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Norman H. Gross, Esq., of counsel
MILLS, Commissioner.--Petitioner appeals the adoption of a shared decisionmaking plan by the Board of Education of the Wellsville Central School District (“respondent”). The appeal must be dismissed.
On July 10, 2006, respondent adopted a shared decisionmaking plan (“the plan”) for 2006-2008, which established district-level and building-level teams (“the teams”).
Petitioner contends that the plan does not conform to the requirements of §100.11 of the Commissioner’s regulations. Specifically, petitioner alleges that the plan does not adequately define membership and the selection process for several constituencies, and that there is no mechanism to ensure fair and equitable participation. Petitioner further contends that the district’s Steering Committee was not properly convened to discuss amendments to the plan because he was told that meeting minutes did not exist. Lastly, petitioner contends that the plan does not specify the means and standards by which the parties must evaluate improvement in student achievement. He requests that I issue a determination that the plan does not comply with §100.11 and that the Steering Committee be reconvened to discuss and develop a new plan compliant with the regulation.
Respondent denies that its shared decision-making plan or its teams are not in compliance with the Commissioner’s regulations. Respondent also contends that it does not have a Steering Committee and that the Commissioner lacks jurisdiction over claims concerning alleged violations of the Open Meetings Law.
Before addressing the merits, I must address petitioner’s reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
The shared decision-making regulation (8 NYCRR §100.11) requires that a district-wide plan, and amendments thereto, “be developed in collaboration with a committee composed of the superintendent of schools, administrators selected by the district’s administrative bargaining organization(s), teachers selected by the teachers’ collective bargaining organization(s), and parents . . . selected by school-related parent organizations . . . .” Petitioner contends that by having only one parent on the committee, respondent violated the regulation. Respondent denies the allegation without elaboration.
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). The introduction to respondent’s plan states that the document “was established with the full participation of parents, teachers, community members and administrators” and is endorsed by members of each of the representative groups. One “parent member” signed the documents. There is no way to determine if this was the only parent member or if this person represented other parent members. Therefore, based on the record before me, I find that petitioner has failed to meet his burden of proving that respondent violated the requirement for parental involvement.
Petitioner also alleges that the plan failed to ensure adequate membership on the teams for several constituencies. For example, the plan defines parental membership for each of the teams as consisting of a “maximum of three members.” Petitioner argues that the phrase “maximum of” can be construed as meaning zero since the minimum number of participants is not defined. I disagree. The membership lists for both the district-level and building-level teams identify required member categories with maximum limits. Therefore, each of these categories must be represented by at least one member.
Petitioner further contends that the plan does not adequately define the selection process for teacher, administrator and parent members of the teams. I find that the regulation is silent concerning the selection method of such representatives once a district’s plan is developed and adopted. “Therefore, the Commissioner of Education has no authority to determine the method of selection of . . . representatives for . . . [these] teams once a shared decision-making plan is in place” (Appeal of Roby, 34 Ed Dept Rep 654, 656, Decision No. 13,442). Thus, to the extent petitioner challenges respondent’s selection of parents and teachers to the various teams, his claim must be dismissed.
Moreover, petitioner claims that the plan fails to set forth adequate standards for evaluating student achievement. Section 100.11(c)(3) of the Commissioner’s regulations provides that the plan shall specify “the means and standards by which all parties shall evaluate improvement in student achievement.” Respondent’s plan requires the building-level team to assess the building’s effectiveness using the following indicators: challenging standards; a well-defined and aligned curriculum; appropriate instructional strategies; parent and community involvement; coordinated services; professional development that supports instructional needs; a supportive, safe, drug-free school environment; utilization of data measuring, using and reporting results and instructional time on task. The utilization of data is considered a method for evaluating student achievement. Thus, I find that this claim is also without merit.
Finally, petitioner’s claims regarding alleged violations of the Open Meetings Law must be dismissed for lack of jurisdiction (Appeal of Stolbach, 43 Ed Dept Rep 218, Decision No. 14,977; Appeal of Taber, 42 id. 251, Decision No. 14,843; Appeals of Gill and Burnett, 42 id. 89, Decision No. 14,785).
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioner refers to this body as a “Steering Committee.” Respondent denies having a “Steering Committee.” Hereinafter, this group is referred to as “the committee.”