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Decision No. 17,284

Appeal of SAMUEL L. RADFORD, III from action of the Board of Education of the City School District of the City of Buffalo, Interim Superintendent Donald Ogilvie, and board members James M. Sampson, Jason M. McCarthy, Dr. Theresa Harris-Tigg, Patti Pierce, Dr. Barbara Seals Nevergold, Sharon Belton-Cottman, Mary Ruth Kapsiak, Carl Paladino, and Larry Quinn regarding a district comprehensive improvement plan and school comprehensive education plans.

Decision No. 17,284

(December 13, 2017)

Rashondra M. Martin, Esq., attorney for respondents

ELIA, Commissioner.--Petitioner appeals the actions of the Board of Education of the City School District of the City of Buffalo (“board”), Interim Superintendent Donald Ogilvie, and board members James M. Sampson, Jason M. McCarthy, Dr. Theresa Harris-Tigg, Patti Pierce, Dr. Barbara Seals Nevergold, Sharon Belton-Cottman, Mary Ruth Kapsiak, Carl Paladino, and Larry Quinn (collectively “respondents”), regarding a district comprehensive improvement plan and school comprehensive education plans.  The appeal must be dismissed.

Petitioner Radford is a parent and guardian of a student in respondents’ district and President of the District Parent Coordinating Council (“DPCC”), which, according to petitioner, is a “Buffalo Public Schools stakeholder pursuant to Sections 100.11 and 100.18 of the Commissioner’s regulations, Buffalo School Board Policy 3170 and the Buffalo Public School’s [sic] School Based Planning Shared Decision Making Policy.”  

According to the petition, on August 20, 2014, respondent board adopted and approved a District Comprehensive Improvement Plan (“DCIP”) and “a collection of School Comprehensive Education Plans” (“SCEPs”). 

Petitioner asserts that, prior to the adoption and approval of the DCIP and SCEPs, respondents failed to adequately engage parents in the development of the DCIP and SCEPs.  According to petitioner, he “properly attached objections to the submitted DCIP.”  Petitioner asserts that his objections in the instant appeal “are consistent with objections filed last year against Respondent....”[1]  Petitioner requests a determination that respondents “have failed, and continue to fail, to comply [with the] parent involvement requirements relative to the 2014 District Comprehensive Improvement Plan and the School Comprehensive Education Plan and render such plans null and void.”  Petitioner further requests that I “designate the Consultant, as defined in the June 2014 Resolution Agreement between the Buffalo Public School District and the U.S. Department of Education/Office of Civil Rights, as a Special Master, at the expense of the Respondents, to manage and oversee the proper development of the DCIP and SCEPS.”[2]

Respondents[3] assert that the petition must be dismissed as untimely; for lack of standing; for failure to establish class status; and for failure to exhaust administrative remedies.  Respondents admit that petitioner submitted a letter objecting to the submission of the DCIP but deny that they failed to adequately engage or involve parents in the development of the DCIP and SCEPs.  Respondents assert that the petition fails to set forth facts alleging a cause of action upon which relief may be granted and maintain that their actions constituted a good faith exercise of discretion and judgment, for which they are “immune.”

As an initial matter, the appeal must be dismissed to the extent petitioner attempts to assert claims on behalf of students other than his own child.  Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]). 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).  The purpose of shared decision-making is to foster communication among all parties involved in educating children (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Trombley, 39 id. 115, Decision No. 14,189).  As a district resident and parent of a child in the district, petitioner has an interest in ensuring that shared decision-making is implemented according to the district’s plan and that parents are represented in the process.  Accordingly, I find that he has standing (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858).

To the extent petitioner seeks to maintain the appeal as a representative of a class of “all parents” of the district’s students, class status is denied.  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 has not made this showing.  In fact, the petition does not address the requisite standard at all.  While petitioner states generally that the “aggrieved parents in the Buffalo Public Schools are so numerous, upwards of 32,000 children, that joinder of all members is impracticable,” it is unclear from the record who the “aggrieved parents” are and whether they share all questions of law and fact at issue in this appeal.  Therefore, class status is denied.

Respondents assert that the appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  The crux of petitioner’s argument is that respondent board approved the DCIP and SCEPs on August 20, 2014, without obtaining adequate parent involvement.  The record indicates that the notice of petition and verified petition were served on September 18, 2014.[4]  Therefore, I decline to dismiss the appeal as untimely. 

The appeal 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Although not entirely clear from the verified petition, I take administrative notice of records on file within the State Education Department indicating that the DCIP and SCEPs approved by respondent board on August 20, 2014 were applicable to the 2014-2015 school year only.  Therefore, petitioner’s claim that respondents failed to comply with the parent involvement requirements relative to the 2014 DCIP and SCEPs is moot.

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

Although the appeal must be dismissed for the reasons discussed above, I note that §100.18(h)(2)(ii) and (iii) of the Commissioner’s regulations, applicable to DCIPs and SCEPs, respectively, require that such plans be “developed in consultation with parents, school, staff and others pursuant to” §100.11.  Petitioners submitted affidavits sworn to by petitioners McIntyre, Elliott-Patton, and Mistretta, indicating that they “like most, if not all” of the district’s high school, middle school and elementary school parents, respectively, “did not have an opportunity to participate in the development of the plans at issue in this proceeding.”  Although respondents generally deny such allegations, they do not provide any evidence indicating any such involvement or attempt(s) to involve parents in the development of the DCIP and SCEP at issue herein.  I remind respondents that the purpose of shared decision-making is to foster communication among all parties involved in the critical job of educating our children. Reasonable communication between petitioners and respondents could resolve the issues between them without resorting to the appeal process.  I therefore remind respondents of their obligation to comply with the spirit and letter of the regulation to achieve the important goals of shared decision-making.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] I note that petitioner has filed several appeals involving respondent board and its members.  Although not specifically referenced in the instant appeal, in Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,281, petitioner asserted that, with regard to the DCIP and SCEP approved on August 21, 2013, respondents did not seek or obtain petitioners’ participation in the research, planning, developing, or reviewing of the DCIP and SCEP within the meaning of sections 100.11 and 100.18 of the Commissioner’s regulations, Buffalo Public School Board Policy 3170, or the district’s School Based Planning Shared Decision Making Policy.

 

[2] In the petition’s “Prelimary Statement,” petitioner makes conclusory allegations regarding respondents’ compliance with the physical education requirements of 8 NYCRR §135.4.  However, this appears to be a clerical error, as such allegations are not mentioned anywhere else in petitioner’s papers and no evidence related thereto is submitted.

 

[3] Although I take notice that some individual named respondents are no longer in office, in essence, petitioner challenges the action of the board as an entity and seeks relief as against such board.

 

[4] It appears that the affidavit of service contains a typographical error in that it reads “18th day of September, 2013.”  However, it was notarized on September 23, 2014.