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Decision No. 15,902

Appeal of DONNA HAMBLIN, MATTHEW WOOD, DR. ARIANE HAMBLIN-SMITH, JAMES L. VAN WINKLE, MARYANNE PELKEY and JILL BURKE from action of the Board of Education of the Altmar-Parish-Williamstown Central School District regarding a school closing and application for the removal of William Scriber, Bonnie Fredericks, Michael Hale, Francis Maunder, Linda Williamson and Elmer Plantz as board members.

Decision No. 15,902

(March 25, 2009)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Marc H. Reitz, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the decision of the Board of Education of the Altmar-Parish-Williamstown Central School District (“board”) to close the Williamstown Elementary School.  Petitioners also seek the removal of the members of the board (“individual respondents”) for alleged financial mismanagement.  The appeal must be dismissed and the application must be denied.

On March 27, 2007, district voters approved a $34.8 million capital improvement project to make renovations, improvements and additions to the district’s high school, middle school and three elementary schools, including the Williamstown Elementary School.  In November 2007, the board was notified by its external auditor of a significant deficit in its fund balance, along with significant accounting issues.  On January 29, 2008, a meeting was held with board members, district administrators and staff to discuss the impact of the district’s financial difficulties and the possible closing of one or more of its elementary schools.  On April 29, 2008, the board voted to close the Williamstown Elementary School, effective June 30, 2008.  This appeal ensued.  Petitioners’ request for interim relief was denied on May 30, 2008. 

Petitioners argue that the board failed to follow the school closing procedures set forth in the Education Law when closing the Williamstown Elementary School and that the decision to close the school was arbitrary and capricious.  Specifically, petitioners allege that the taxpayers had no input into the restructuring of the district.  Petitioners further allege that the board violated Education Law §1718 and held an unadvertised meeting on January 29, 2008.  Petitioners seek the removal of the individual respondents for alleged incompetence and financial mismanagement.  The also seek the re-opening of the Williamstown Elementary School.

Petitioners object to respondents’ late answer.  Respondents admittedly submitted their answer one day late.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of Johnson, 45 id. 469, Decision No. 15,384).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Raines, 45 Ed Dept Rep 21, Decision No. 15,246; Appeal of Bonham, 44 id. 179, Decision No. 15,140).  Respondents’ attorney offers as reasons for the delay the miscalculation of the due date and administrative issues.  I do not, however, find these excuses compelling.  I have therefore not accepted respondents’ answer, and petitioners’ factual statements are deemed to be true.

During the pendency of the appeal, respondents made a request to submit additional information pursuant to §276.5 of the Commissioner’s regulations.  Specifically, respondents submitted a letter and affidavits indicating that the district now plans to close all existing elementary schools, centralize all elementary students into the existing middle school building and house all 7-12 students in the high school building.  Respondents also explain that on December 16, 2008, district voters approved a proposition to utilize the funds previously authorized in March 2007 for reconstruction and additions to the middle school and high school buildings.  Because the additional information directly relates to the configuration of the district’s schools, I have accepted it for consideration in this appeal.

Petitioners’ challenge to the board’s decision to close the Williamstown Elementary School must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  On December 16, 2008 district voters approved a proposition to utilize funds previously authorized for alterations and additions to the three elementary schools, for reconstruction and additions to the existing middle school and high school.  Respondents indicate that throughout the fall of 2008, district voters were advised that the purpose of the proposition was to create a two-building central campus which would result in the closing of all three existing elementary schools once the renovations and additions were complete.  Accordingly, the facts and circumstances which formed the basis for the appeal have changed, rendering the appeal moot (seeAppeal of Goltz, 40 Ed Dept Rep 623, Decision No. 14,571).

Even if the appeal were not dismissed on procedural grounds, I would dismiss it on the merits.  Petitioners contend that the board should have followed the procedures in Education Law §402-a before deciding to close the Williamstown Elementary School.  Education Law §402-a is discretionary and identifies factors to be considered by a board only if it chooses to establish an “advisory committee on school building utilization to investigate the educational impact of such a closing” (Education Law §402-a[1]; Appeal of Andrews, et al., 45 Ed Dept Rep 248, Decision No. 15,312; Appeals of Patashnick and Waters, 39 id. 236, Decision No. 14,225; Appeal of Seligman and Rosenberg, 31 id. 131, Decision No. 12,594).  The decision to establish an advisory committee rests solely with the board (seeAppeal of Seligman and Rosenberg, 31 Ed Dept Rep 131, Decision No. 12,594).  When such a committee is established, the statute requires consideration of certain factors, notice and a public hearing (Education Law §402-a; Appeal of Seligman and Rosenberg, 31 Ed Dept Rep 131, Decision No. 12,594).  

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  In this case, it is not clear that the board intended to establish a §402-a committee.  The fact that the board appointed a “reconfiguration committee” does not necessarily imply that it was formed pursuant to the statute.  Moreover, the recommendations of such committee are advisory only, and the board is not required to adhere to the committee’s recommendations (seeAppeal of Andrews, et al., 45 Ed Dept Rep 248, Decision No. 15,312; Appeal of Seligman and Rosenberg, 31 id. 131, Decision No. 12,594).  I therefore cannot conclude that the board affirmatively chose to form a §402-a committee and was consequently required to follow the specific steps outlined therein.

Decisions about the closing of school buildings are within the discretion of a board of education and will not be set aside unless they are shown to lack a rational basis (Appeal of Bailey and Maxwell, 45 Ed Dept Rep 270, Decision No. 15,318; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850; Appeals of Patashnick and Waters, 39 id. 236, Decision No. 14,225).  Pursuant to Education Law §§1709(3) and (33), and 1804, a board of education of a central school district has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein.  In such cases, a board’s discretion is broad (Matter of Older, et al. v. Bd. Of Educ., 27 NY2d 333; Appeal of Bailey and Maxwell, 45 Ed Dept Rep 270, Decision No. 15,318; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850).  Accordingly, a board’s decision to reorganize its schools will not be overturned unless it is arbitrary, capricious or contrary to sound educational policy (Appeal of Bailey and Maxwell, 45 Ed Dept Rep 270, Decision No. 15,318; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850; Appeals of Patashnick and Waters, 39 id. 236, Decision No. 14,225). 

Petitioners have failed to meet their burden of demonstrating that the board’s decision to close the Williamstown Elementary School was arbitrary or capricious.  On the contrary, the record reveals that the board considered several factors in deciding to close the Williamstown Elementary School, including a decrease in enrollment, changes in State and federal funding, increases in operating costs and budget projections.

Petitioners’ application for removal of Fredericks, Maunder and Williamson, must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  By affidavit dated March 2, 2009, the district clerk notified my Office of Counsel that Fredericks, Mauder and Williamson are no longer members of the board.  Therefore, petitioners’ application for their removal is moot.

Petitioners’ application for the removal of Hale, Scriber and Plantz as members of a board of education must also be dismissed.  A member of a board of education may be removed from office pursuant to Education Law §306 when it is proved to the satisfaction of the Commissioner that the board member has engaged in a wilful violation or neglect of duty under the Education Law or has wilfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Application of Bean, 42 Ed Dept Rep 171, Decision No. 14,810; Application of Lilker, 40 id. 704, Decision No. 14,588; Application of Kozak and Hetey, 40 id. 195, Decision No. 14,459).  To be considered wilful, a respondent’s actions must have been intentional and with a wrongful purpose.  Petitioners argue that these individual respondents should be removed because they are incompetent and have engaged in financial mismanagement of district funds.  I cannot conclude, however, from the evidence before me that the actions of the members of the board in this matter constitute a wilful violation or neglect of duty nor were their acts intentionally done with a wrongful purpose.  Accordingly, petitioners’ application is denied.

Finally, petitioners’ objections to an unadvertised meeting held on January 29, 2008 relate to the Open Meetings Law.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of L.A., et al., 46 Ed Dept Rep 450, Decision No. 15,561; Appeal of Hubbard, 45 id. 466, Decision No. 15,383; Appeal of Hubbard, 45 id. 451, Decision No. 15,379).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

One administrative matter remains.  The individual respondents have requested that I grant them a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify the board members for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of his duties as a member and president of the board.  It is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith (Application of Mazile, 45 Ed Dept Rep 378, Decision No. 15,356; Application of Lilly, 43 id. 459, Decision No. 15,050).  In view of the fact that the petition is dismissed on procedural grounds, and there has been no finding that the individual respondents acted in bad faith, I find the individual respondents are entitled to the requested certificate.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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