Decision No. 16,841
Appeal of OPPORTUNITY CHARTER SCHOOL from action of the New York City Department of Education, Dennis M. Walcott, Chancellor of the New York City Department of Education, Success Academy Charter School - Harlem 4 and STEM Institute of Manhattan regarding school utilization.
Decision No. 16,841
(October 26, 2015)
Whiteman Osterman & Hanna LLP, attorneys for petitioner, Kevin P. Quinn, Esq., of counsel
Zachary W. Carter, Corporation Counsel, attorney for respondents New York City Department of Education and Chancellor of the New York City Department of Education, Martin Bowe, Esq., of counsel
Emily Kim, Lindsey Luebchow and Kyle Gruber, Esqs., attorneys for respondent Success Academy Charter School - Harlem 4
ELIA, Commissioner.--Petitioner, Opportunity Charter School (“OCS”), challenges a determination by the New York City Department of Education (“DOE”) that it was allocated sufficient space in building M113 (“M113” or “the building”) where it is co-located with STEM Institute of Manhattan (“STEM”) and Success Academy Charter School - Harlem 4 (“SACS - Harlem 4”). The appeal must be dismissed.
OCS is authorized to serve students in grades 6 through 12. Its initial charter, which was approved in 2004 for a term of 5 years, indicated that the school planned to serve 3 classes per grade with 18 students in each class. It first opened for instruction in the 2004-2005 school year serving students in grades 6 and 7. Beginning with the 2006-2007 school year, OCS was co-located in M113 with STEM, a district elementary school that serves approximately 131 students in kindergarten through grade 5.
On May 18, 2009, OCS’s first renewal charter was granted up through and including August 18, 2010. Its renewal application indicated that for the 2009-2010 school year, OCS would serve 378 students in grades 6 through 12. On August 19, 2010, OCS was granted a second renewal charter up through and including June 30, 2012. OCS’s second renewal application indicated that, upon renewal, it would serve 420 students in grades 6 through 12. The second renewal application also included a chart which indicated that OCS would serve 60 students in each grade with 4 sections per grade.
SACS - Harlem 4 is authorized to serve students in kindergarten through eighth grade. Its elementary school serves kindergarten through fourth grade. When SACS - Harlem 4 first opened for the 2008-2009 school year, it served students in kindergarten and first grade. Beginning in the 2009-2010 school year, SACS - Harlem 4 was co-located with STEM and OCS in M113 and served students in kindergarten through second grade. During the 2010-2011 school year, SACS - Harlem 4 served students in kindergarten through third grade. During the 2011-2012 school year, SACS - Harlem 4 served approximately 419 students in kindergarten through fourth grade.
According to DOE’s verified answer, during the summer of 2011, DOE issued an allocation letter describing the space allocation for the building for the 2011-2012 school year (“2011 space allocation letter”). The 2011 space allocation letter indicated that the space allocation for the three schools in the building was derived from the application of the DOE Instructional Footprint (“Footprint”). According to DOE, the Footprint serves as a guideline for making decisions about the allocation of space and represents a baseline for space allocation. The 2011 space allocation letter provided that the building had approximately 61 full-sized equivalent spaces of which OCS was allocated 25, SACS - Harlem 4 was allocated 25.25 and STEM was allocated 10.75. According to OCS’s operations supervisor, DOE did not provide the 2011 space allocation letter to OCS in the summer of 2011 and OCS was not made aware of the letter until its introduction as an exhibit to DOE’s answer in this appeal.
In December 2011, OCS submitted its third charter renewal application to DOE. OCS’s third renewal application included an updated enrollment chart identifying the school’s planned enrollment by grade for each year of the proposed third charter term. The chart indicated total enrollment of 420 students - 60 students in each grade and 4 sections per grade for the 2012-2013 through 2016-2017 school years. DOE approved OCS’s application for a five-year charter term in early 2012 and entered into the third renewal charter agreement in May 2012, which was approved by the Board of Regents at its May 2012 meeting.
For the 2012-2013 school year, all three schools remained in the building. According to the affirmation of a supervising attorney in DOE’s Office of the General Counsel, DOE did not issue a new space allocation letter for the 2012-2013 school year because school enrollments had not changed materially and no rooms were being reallocated among the schools.
In early November 2012, OCS’s operations supervisor contacted DOE requesting a copy of M113’s Building Council Audit for the 2012-2013 school year. After receiving the information, OCS’s operations supervisor inquired as to how to correct inaccuracies and how to obtain an actual room allocation list. He requested the information again on November 27 and December 12, 2012. It does not appear from the record that DOE acknowledged or replied to the operations supervisor’s requests.
In his affidavit, OCS’s operations supervisor indicated that in June 2013, he contacted DOE’s Portfolio Planning Office and over the following two months exchanged several emails and conducted several phone conferences with the senior director for the Portfolio Planning Office’s charter policy and planning team regarding space allocation. He also stated that he made multiple attempts to work through the Building Council to resolve space allocation issues.
In addition, petitioner’s chief executive officer stated in his November 2013 affidavit that over the preceding several months, he made several attempts to resolve concerns over space allocation with STEM and SACS – Harlem 4. He also stated that those efforts were not productive and that he contacted OCS’s designated charter school network leader to seek intervention and assistance in the resolution of the matter. He further stated that in August 2013, he participated in a telephone conference with various DOE representatives including representatives from the Portfolio Planning Office, Campus Governance, Office of Space Planning, as well as the charter school network leader.
According to DOE, OCS contacted DOE for the first time in August 2013 about the allocation of space in M113, and at that time DOE suggested that OCS put its concerns in writing. By letter dated September 16, 2013, OCS asserted that its space allocation was below the minimum requirements set forth in DOE’s guidelines. It also noted that special education students comprised 50 percent of its student enrollment. OCS requested that DOE review the space allocation and take measures to ensure the proper allocation of class and resource room space. It also requested written justification for denial of any modification of the space allocation. DOE responded by letter to OCS dated October 3, 2013, advising that OCS had been allocated sufficient space in the building. It also advised OCS of the dispute resolution process and provided a copy of the dispute resolution process. This appeal ensued.
Petitioner challenges DOE’s October 3, 2013 letter advising that OCS had been allocated sufficient space in the building. It asserts that DOE failed to follow the Footprint, based its space allocation determination on incorrect information and failed to consider the special needs populations of OCS. Petitioner requests that I declare the present space allocation at M113 to be inconsistent with the requirements of the Footprint, and either direct DOE to properly allocate space, giving due consideration to OCS’s special needs populations, or require that DOE prepare an Educational Impact Statement (“EIS”) and Building Utilization Plan (“BUP”). It also asserts that certain rooms allocated to the other schools in the building are underutilized.
Respondents contend that petitioner failed to exhaust available administrative remedies with respect to its September 16, 2013 challenge to the building’s space allocation plan. Respondents also contend that petitioner’s challenge to the building usage at M113 is untimely as the plan has been in place since the 2011-2012 school year. Respondents maintain that, in any event, DOE’s actions were reasonable and not arbitrary or capricious. In addition, respondent SACS - Harlem 4 asserts that petitioner fails to state a claim and seeks relief outside the scope of the Commissioner’s power to grant.
In its replies to respondents’ answers, petitioner denies that it failed to exhaust administrative remedies and that the appeal is untimely. It contends that DOE’s 2011 space allocation letter should not be considered DOE’s final determination for statute of limitations purposes and that DOE’s actual final determination occurred when petitioner was provided with DOE’s October 3, 2013 correspondence.
Here, petitioner is challenging DOE’s October 3, 2013 response to its September 16, 2013 letter regarding the space allocation in the building. Respondents argue that the appeal should be dismissed for failure to exhaust administrative remedies. Although petitioner claims that DOE’s October 3, 2013 letter is DOE’s final decision on the space allocation issue, the record does not indicate that a final determination has been issued pursuant to DOE’s restrictive dispute resolution process (cf. Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543). Pursuant to Chancellor’s regulation A-190, in the event that a building council cannot reach resolution on an issue, “the dispute resolution procedures set forth in the Campus Policy Memo and Procedures ... shall be applicable” (emphasis added). The Campus Policy Memo and Procedures (“Memo”) outlines several dispute resolution steps that occur before a final determination is made by the Senior Supervising Superintendent in coordination with the DOE manager who has responsibility for the area of concern. The Memo requires that the community or high school superintendent(s), in collaboration with the Senior Supervising Superintendent, “ensure the implementation of that decision.”
Here, the October 3, 2013 letter is signed by the senior director of the Portfolio Planning Office’s charter policy and planning team, and not only does she refer OCS to the dispute resolution process and enclose a copy of the memo in which it is set forth, but she also provides the contact information for the individuals to be contacted in each step of the process. Although petitioner claims that it followed DOE’s process and contacted the required individuals, other than informal discussions with DOE’s staff, the record does not indicate or contain any evidence that a final determination was made by the senior supervising superintendent in coordination with the DOE manager who has responsibility for the area of concern (see Appeal of Combier, 42 Ed Dept Rep 223, Decision No. 14,831). As petitioner did not complete DOE’s review process with respect to its September 2013 challenge to DOE’s space allocation for the building prior to commencing this appeal, the appeal must be dismissed for failure to exhaust administrative remedies.
While I am constrained to dismiss the appeal on procedural grounds, I note that petitioner submitted, and DOE approved, a second renewal application in August 2010 and a third renewal application in December 2011, both of which contained errors and inconsistencies that went unresolved and affected DOE’s space allocation determination. I urge DOE to review its procedures to ensure that its space allocation determinations are based on accurate information. I also urge petitioner to ensure that its renewal applications comply with DOE requirements, contain accurate information and clearly indicate any proposed revisions. Finally, cooperation and collaboration are at the heart of any successful co-location, and I encourage the parties to work together to ensure its continued success.
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 The current Chancellor is Carmen Fariña.
 STEM stands for “Science, Technology, Engineering, and Mathematics.”
 Pursuant to §276.6 of the Commissioner’s regulations, I have taken administrative notice of the records pertaining to OCS on file with the State Education Department.
 OCS added one grade per year until it began serving students in grade 12 commencing in the 2009-2010 school year.
 Each subsequent year, as the oldest group of students advanced, SACS – Harlem 4 added one grade.
 During the 2013–2014 school year, SACS - Harlem 4’s middle school served students in fifth and sixth grade in a different public school building.
 According to DOE’s 2013 Campus Policy Memo and Procedures, a Building Council is a structure for administrative decision-making for issues impacting all schools in the building.
 Education Law §2590-h(2-a) was added in 2009 and requires, among other things, that the Chancellor of the City School District of the City of New York prepare an EIS for any proposed school closing or significant change in school utilization, including a co-location, for any public school located within the City School District. Education Law §2853(3)(a-3) was added in 2010 and requires that a BUP be developed before a charter school may be located or co-located in a public school building. The schools involved in this appeal were co-located in M113 before these requirements became effective.
 In the petition, petitioner clearly states that it is appealing from DOE’s October 3, 2013 determination. As a result, I need not address respondents’ claims that the appeal is untimely because it is a challenge to the building usage plan first implemented in the 2011-2012 school year.
 Although the Chancellor’s regulations have not been submitted as part of the record in this appeal, I take administrative notice of the regulations posted on DOE’s official website.