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Decision No. 16,315

Appeal of DOUGLAS E. LAGRANGE, on behalf of the community of New Scotland, concerned parents in the Bethlehem Central School District and their children, from action of the Board of Education of the Bethlehem Central School District regarding a school closing.

Decision No. 16,315

(November 22, 2011)

Whiteman Osterman & Hanna, LLP, attorneys for respondent, Norma G. Meacham and Stacey M. Barrick, Esqs., of counsel

TRAUTWEIN, Counsel and Deputy Commissioner for Legal Affairs.--Petitioner appeals the decision of the Board of Education of the Bethlehem Central School District (“respondent” or “board”) to close the Clarksville Elementary School (“Clarksville”).  The appeal must be dismissed.

On March 30, 2011, respondent voted to close Clarksville.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 6, 2011.

Petitioner alleges that in deciding to close Clarksville, respondent abdicated its responsibility as a board and violated district policies governing meetings and voting.  He contends that respondent’s decision was arbitrary, capricious, biased and inequitable.  Petitioner maintains that respondent relied on flawed enrollment projections and did not consider alternate cost savings and revenue generating measures.  Finally, petitioner maintains that closing Clarksville will reduce property values.  Petitioner requests that I reverse respondent’s decision to close Clarksville until a thorough study of community and educational impact is conducted by an Education Law §402-a advisory committee.

Respondent alleges that the petition is untimely and fails to state a claim upon which relief may be granted and that petitioner lacks standing to maintain this appeal.  Respondent maintains that its decision to close Clarksville  was not arbitrary or capricious, that decisions regarding district reorganization and the closing of school buildings are within the discretion of the board of education, and that the district’s decision whether to establish an Education Law §402-a committee is discretionary.

As an initial matter, I note that both Commissioner King and Executive Deputy Commissioner Grey are residents of respondent’s school district and the parents of children who attend respondent’s schools.  Accordingly, both Commissioner King and Executive Deputy Commissioner Grey have recused themselves and have not taken part in the consideration of this appeal.[1]  Pursuant to Public Officers Law §9, the Commissioner has also delegated the authority to render decisions in appeals to his Counsel and Deputy Commissioner for Legal Affairs in the absence or disability of the Commissioner.  Accordingly, I will determine the appeal.

I must next address several procedural issues.  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 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.

In addition to submitting a reply to respondent’s verified answer, petitioner has requested consideration of a “Reply to Respondent’s Memorandum of Law and Additional Information.”  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  According to petitioner, the reply to respondent’s memorandum of law is intended to address respondent’s procedural arguments and adds critical information for consideration in this appeal.  While much of petitioner’s reply to respondent’s memorandum of law appears to restate the allegations described in the petition and other pleadings, I note that petitioner also makes several attempts to buttress allegations in the petition and to add new claims against respondent.  Accordingly, pursuant to the authority granted by §276.5 of the Commissioner’s regulations, while I have accepted the reply to respondent’s memorandum of law and additional information for consideration, I have not considered those portions that serve to buttress allegations in the petition and to add new claims against respondent.

In the caption of his petition, petitioner names himself as “Representative of the Community of New Scotland” and “Concerned Parents in the Bethlehem Central School District and Our Children.”  The record contains no evidence that the groups petitioner intends to represent are incorporated.  Accordingly, to the extent petitioner intends to bring this appeal as an unincorporated association or as an individual representative of an unincorporated association, he lacks standing to do so  Appeal of Torres, 46 Ed Dept Rep 301, Decision No. 15,515; Appeal of Russo, 46 id. 266, Decision No. 15,504; Application of Simmons, 43 id. 7, Decision No. 14,899).

An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Petitioner’s status as a taxpayer and resident of the district would not be sufficient in and of itself to confer standing to challenge the school closing (Appeal of Woodward, 36 Ed Dept Rep 445, Decision No. 13,773).  However, petitioner alleges that the closing of Clarksville will reduce his property value by 20 percent, and if proven, this would result in personal injury to his property rights.  Accordingly, I find this sufficient to confer standing on him to bring this appeal (see e.g., Campbellv. Barraud, 58 AD2d 570 [standing established in zoning case where plaintiffs alleged diminution in property values and anticipated water pollution]). 

To the extent petitioner seeks to maintain the appeal as a representative of a class of parents and children of the Bethlehem Central School District, I note that an appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Petitioner’s pleadings are entirely devoid of any allegations addressing these criteria.  Therefore, to the extent petitioner seeks class certification, class status is denied.

Turning to the merits, 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 Fettinger, et al., 47 Ed Dept Rep 4, Decision No. 15,604; Appeal of Bailey, et al., 45 id. 270, Decision No. 15,318, judgment granted dismissing stay request and petition, Sup. Ct., Albany Co., December 13, 2006).  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 Fettinger, et al., 47 Ed Dept Rep 4, Decision No. 15,604; Appeal of Bailey, et al., 45 id. 270, Decision No. 15,318, judgment granted dismissing stay request and petition, Sup. Ct., Albany Co., December 13, 2006).  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 Fettinger, et al., 47 Ed Dept Rep 4, Decision No. 15,604; Appeal of Bailey, et al., 45 id. 270, Decision No. 15,318, judgment granted dismissing stay request and petition, Sup. Ct., Albany Co., December 13, 2006; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850).

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 Herrala, 50 Ed Dept Rep, Decision No. 16,264;  Appeals of Luciano and Hatton, 50 id., Decision No. 16,153; Appeals of Andrews, et al., 45 id. 248, Decision No. 15,312).  The decision to establish an advisory committee rests solely with the board (Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153).  When such a committee is established, the statute requires consideration of certain factors, notice and a public hearing (Education Law §402-a; Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153).  However, even where an advisory committee is established, the ultimate decision regarding closure rests with the board (seeAppeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153).

Petitioner requests that I order the formation of an Education Law §402-a committee.  However, there is no basis for ordering respondent to form an advisory committee pursuant to §402-a since it is discretionary on the part of respondent and the present record does not indicate that respondent affirmatively chose to form a §402-a committee (seeAppeals of Andrews, et al., 45 Ed Dept Rep 248, Decision No. 15,312).

Instead, in August 2010, respondent created a fiscal Think Tank which was charged with considering long-term savings opportunities for the district.  The Think Tank was made up of 45 members, including district employees, administrators, parents, and community members.  During the fall of 2010, the Think Tank was scheduled to meet on a monthly basis to discuss ideas and develop recommendations to be presented to the board.  Ultimately, the Think Tank recommended five areas for further review:  closure of an elementary school, privatization of food service operations, sale of district offices, restructuring Clarksville and restructuring Slingerlands Elementary School.  In light of the Think Tank’s recommendations and the superintendent’s annual long-range planning report, respondent directed the superintendent to conduct a feasibility study focusing on the potential closure of Clarksville and the district’s administrative office.  The feasibility study, which was presented to the board in February 2011, considered enrollment data, cost and savings of these plans.  The feasibility study presented the board with five options regarding the district’s elementary schools, as well as options for closing district offices.  These options included: the closure of Clarksville for the 2011-2012 school year; the closure of Clarksville for the 2012-2013 school year; redrawing of elementary school boundaries; making no changes to boundaries of facilities; or the closure of Elsmere Elementary School (“Elsmere”).  The feasibility study revealed that respondent could save between $800,000 and $900,000 by closing an elementary school.

Simultaneous with the presentation of the feasibility study, the superintendent also presented the proposed budget for the 2011-2012 school year, which included a $1.07 million deficit.

In March 2011, the board held two public forums to discuss the feasibility study and obtain input from the community.  Both meetings were made available via webinar through the district’s website, and hundreds of community members participated.  At the first meeting, the board reviewed the criteria it would use to make a facilities decision, provided a summary of options and cost savings, and outlined the fiscal impact of closing Clarksville.  At the second meeting, the board addressed certain concerns raised by the public during the first meeting.

On March 30, 2011, the board voted to close Clarksville for the 2011-2012 school year.  In reaching its decision, the board considered which alternative would: 1) affect the fewest possible number of families; 2) achieve rational school boundaries within the number of facilities in operation; 3) maximize building capacity both in terms of using available space efficiently, and insuring special subjects and services have adequate space, and 4) minimize cost and maximize the savings impact of the options presented.  The board also considered the community’s desire to have elementary schools that are not too large.

Based on the record before me, it is apparent that respondent thoroughly considered the matter and based its decision to close Clarksville on several factors including cost, enrollment and building capacity.  It is also apparent that the board considered community concerns before making its determination.  Accordingly, I cannot conclude that respondent’s decision to close Clarksville was arbitrary, capricious or irrational.

Finally, petitioner alleges that respondent’s decision to close Clarksville was procedurally flawed, biased and inequitable, based on inaccurate data and misrepresentations, and could reduce property values in the community by up to 20 percent.  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).  Petitioner has failed to meet his burden with respect to these claims. 

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

THE APPEAL IS DISMISSED.

END OF FILE.

[1] Pursuant to Education Law §101 and §3.8(b) of the Rules of the Board of Regents, in the absence or disability of the Commissioner, the Executive Deputy Commissioner is authorized to carry out the functions and duties of the Commissioner as Acting Commissioner.  This includes the authority to render decisions in an appeal pursuant to Education Law §310.