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Decision No. 16,153

Appeal of ANTONIO LUCIANO from action of the Board of Education of the East Ramapo Central School District regarding a school closing.

Appeal of MARGARET HATTON from action of the Board of Education of the East Ramapo Central School District regarding a school closing.

Decision No. 16,153

(September 15, 2010)

Minerva & D’Agostino, P.C., attorneys for respondents, Roslyn Z. Roth, Esq., of counsel

STEINER, Commissioner.--In two separate appeals, petitioners challenge the decision of the Board of Education of the East Ramapo Central School District (“respondent”) to close an elementary school.  Because the appeals present similar issues of fact and law, they have been consolidated for decision.  The appeals must be dismissed.

On April 19, 2010, respondent voted to close Hillcrest Elementary School (“Hillcrest”), relocate Hillcrest’s student population to the Freshman Center building, relocate all ninth grade students currently at the Freshman Center to Ramapo High School, and designate Hillcrest as surplus property.  These appeals ensued.  Petitioners’ requests for interim relief were denied on May 27, 2010.

Petitioner Luciano (“Luciano”) alleges that respondent failed to consider relevant factors including educational, administrative, cost, benefit and programmatic impact alternatives prior to deciding to close Hillcrest.  He maintains that respondent’s decision is arbitrary and capricious and lacks a rational basis.  Finally, Luciano contends that respondent’s decision to surplus Hillcrest was “not an arms length transaction.”

Luciano requests that I vacate respondent’s determinations, direct respondent to engage in a thorough and deliberative process before excessing district property and put before district voters any subsequent action to excess Hillcrest.  Finally, Luciano requests that I review and approve all district real property transactions “until such time as . . . Respondent is acting rationally and prudently and fulfilling its fiduciary responsibilities . . . .”

Petitioner Hatton (“Hatton”) alleges that respondent failed to form a building reorganization committee to study the ramifications of closing Hillcrest prior to making its determination.  Hatton also contends respondent did not comply with the Public Officers Law and, specifically, the Open Meetings Law in several respects.  Finally, Hatton alleges that respondent’s decision to close Hillcrest was arbitrary and capricious.

For relief, Hatton requests that I order respondent to commission a detailed demographic study to determine whether Hillcrest is needed.  Hatton also requests that I order the creation of a new building reorganization committee, open to the public, with representation by parents and community organizations.

Respondent maintains that decisions regarding school reorganizations and the closing of a school building are within its discretion and that it properly approved the closing of Hillcrest.  Respondent further contends that petitioners failed to establish that its determinations were arbitrary or capricious.  Finally, respondent contends that I lack jurisdiction with respect to alleged violations of the Public Officers Law.

Initially, I must address Luciano’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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No 15,901).  Therefore, while I have reviewed Luciano’s 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.

Decisions about school district reorganization and 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 Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeals of Patashnick and Waters, 39 id. 236, Decision No. 14,225; Appeal of Malone and Trombley, 39 id. 135, Decision No. 14,194).  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. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Malone and Trombley, 39 id. 135, Decision No. 14,194).  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 Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeals of Patashnick and Waters, 39 id. 236, Decision No. 14,225; Appeal of Malone and Trombley, 39 id. 135, Decision No. 14,194).

Education Law §402-a authorizes and recommends that a board of education establish an "advisory committee on school building utilization to investigate the educational impact” of a school closing (Education Law §402-a[1]; Appeals of Patashnick and Waters, 39 Ed Dept Rep 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 a 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).  However, even where an advisory committee is established, the ultimate decision regarding closure rests with the board (seeAppeal of Seligman and Rosenberg, 31 Ed Dept Rep 131, Decision No. 12,594).

Although she does not specifically refer to Education Law §402-a, Hatton requests that I order the formation of a new, representative, building reorganization committee to determine whether Hillcrest is needed.  However, there is no basis for ordering respondent to form an advisory committee pursuant to §402-a, as such committees are discretionary and the present record does not indicate that respondent opted to establish a §402-a committee (Appeal of Hatton, 49 Ed Dept Rep 47, Decision No. 15,954; seealsoAppeals of Andrews, et al., 45 id. 248, Decision No. 15,312).

Respondent commissioned a study by the Western Suffolk Board of Cooperative Educational Services, Office of School Planning and Research (“BOCES”) of district demographic enrollment data to inform enrollment projections and building reorganization considerations.  Three reports, dated June 2007, June 2008 and 2008-2009, were generated.  The BOCES study was presented at a public board meeting on November 5, 2008.  The study concluded that student population was declining and would continue to decline.

Also, in May 2008, the superintendent formed a Long Range Planning Committee on Restructuring and Reorganization, initially comprised of central administrators to investigate the reconfiguration of grades, reorganization of facilities and potential closing of one or two school buildings.  The committee’s mandate was to review building capacity in the district.  In August 2008, the committee was expanded to include parents, teachers and community members.  It reviewed demographic data, transportation simulations, building capacities and numbers of students receiving special education and English as a second language services.

Three community forums were held to gain community input.  Subsequent to these activities, at the January 7, 2009 board meeting, the superintendent initially recommended the closing of two elementary schools -- Hempstead and Limekiln -- due to difficult economic conditions and an expected decrease in State aid.  The superintendent ultimately recommended the closing of the Colton Elementary School, which occurred on April 1, 2009.  However, the superintendent also recommended monitoring demographic changes within the district to potentially close a second elementary school or move the students located at the Freshman Center to the high school.

At its April 19, 2010 meeting, the superintendent’s proposed 2010-2011 budget reflected the closing of Hillcrest.  At the meeting, board members discussed the proposed closing and recognized that, in order for the district to realize cost savings related to the closing, the board had to make a final decision prior to adoption of the district’s budget which was due that same date.

At the April 19, 2010 meeting, the superintendent stated that the proposal to close Hillcrest, as opposed to one of the other district elementary schools, was based on geographic and transportation concerns.  He also indicated that he considered the likelihood that third parties would be more inclined to lease or purchase Hillcrest than the other elementary schools or the Freshman Center.  The Freshman Center was not considered as an alternative for lease because it houses other district programs, including a kindergarten, and the superintendent felt it would be difficult to rent only a part of this facility.

The minutes of respondent’s April 19, 2010 meeting indicate that, in preparing its 2010-2011 budget, respondent considered closing Hillcrest for reasons of economy and efficiency.  Specifically, the minutes reflect that respondent considered current and projected enrollment, the prospective need for the Hillcrest building and property, the ramifications of the school closing on the community, the initial cost and savings resulting from the closing, the disposability of the closed schools, the effect of the closing on personnel needs and the cost of instruction, administration, transportation and other support services and finally the ability of other schools to accommodate students.

Moreover, respondent’s president avers that the school closing does not adversely impact educational services to students and that the Freshman Center is a well equipped school which will offer Hillcrest students access to science labs, a dedicated auditorium (which Hillcrest lacks), massive gyms, athletic fields and classrooms specifically designed to provide art and music instruction.  The record indicates that Hillcrest has the smallest amount of square footage compared to the other schools.  Petitioners do not refute these facts.

In addition, respondent’s administrator for special projects (“administrator”) avers that the decision to close Hillcrest was based on the declining student population and under-utilization of district facilities evidenced in the BOCES report.  He maintains that the school closing has no adverse educational impact and will result in savings of personnel costs of approximately $3,000,000 - a fact also not disputed by petitioners.  He states that the decision to close Hillcrest was part of a well designed strategy to reduce the community’s tax burden without sacrificing educational services.

With respect to Luciano’s allegation that the cost savings calculations relating to the closing of Hillcrest are incomplete because they do not include the cost of converting the Freshman Center to accommodate elementary students, respondent explains that those costs are minimal and can be absorbed within its existing budget.

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Based on the record before me, I find that petitioners have failed to meet their burden of proving respondent’s decisions to close Hillcrest and excess the property lacked a rational basis or were educationally unsound.  On the merits, respondent has articulated a rationale for the closing based on overall building utilization, cost savings, positive educational impact due to the Freshman Center’s superior building, and ability to sell or lease Hillcrest.  Petitioners’ assertion that district-wide enrollment increased in the 2008-2009 school year, at least in part due to the enrollment of students from Haiti, is inapposite and does not negate respondent’s determination that its elementary schools are under-utilized.  The record indicates that respondent was aware of these increases when it made its determination.  Moreover, petitioners do not address the disbursement of the additional students among the district’s elementary and secondary schools or otherwise demonstrate any impact on overall building utilization.

It is apparent that respondent has been continuously reviewing models for reorganization of its elementary schools, and based its determinations to close Hillcrest and excess the Hillcrest property on relevant educational and economic factors.  The fact that respondent was under a time constraint when making its determinations in order to realize cost savings from the closing and sale in its 2010-2011 budget does not, in and of itself, render its decisions arbitrary and capricious, nor does respondent’s consideration of the benefits of selling or leasing a building.

Petitioners have not demonstrated that the educational needs of students or the needs of staff formerly housed in Hillcrest will not be met in the Freshman Center; indeed, the record indicates that they will.  While Luciano argues in a conclusory fashion that respondent failed to fully analyze the educational impact of the transfer of the ninth grade students from the Freshman Center to the high school, respondent asserts that the educational needs of the ninth graders will be met in the high school.  Luciano has not provided any evidence that the relocation of the ninth grade students will adversely affect the class size of the ninth graders or any other students in the high school.  In the absence of such proof, I decline to set aside respondent’s determinations on that basis.

The record also reflects that any real estate transaction involving Hillcrest was discussed in executive session because publicity would have affected the value of a proposed sale and/or lease of the property.  Moreover, a general decision to surplus a district building is not subject to considerations of an “arms length transaction” and respondent maintains that any determination to sell or lease the Hillcrest building will conform to all requirements of law.[1]  I have no basis in this record for concluding that respondent’s determinations were based on anything other than the factors recited in the board minutes of April 19, 2010.

Upon consideration of the entire record, petitioners have failed to establish that respondent lacked a rational basis for its determinations to close and excess Hillcrest and I therefore decline to set aside respondent’s determinations as arbitrary and capricious.

In addition, Hatton raises several issues relating to respondent’s compliance with the Public Officers Law, including alleged deficiencies concerning the recordation of minutes.  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 McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

Finally, although respondent has made a sufficient showing that its determinations with respect to Hillcrest had a rational basis and should not be set aside, I urge respondent to ensure that in the future its decisions on school reorganizations or school closings are made through an orderly, deliberative process that includes adequate opportunity for public participation and input.  Although respondent has not opted to follow the procedures set forth in Education Law §402-a, the minimal process it employed in this case predictably generated the controversy and public outcry that led petitioners to bring these appeals.  Respondent should follow procedures similar to those it employed in the closing of the Colton Elementary School, which was the subject of Appeal of Hatton (49 Ed Dept Rep 47, Decision No. 15,954), so that it has the benefit of public input and engages the entire school community throughout the process.

I have considered the parties’ remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] I note that respondent’s actions in selling Hillcrest are the subject of another pending appeal, Appeal of White.