Appeal of MATTHEW BARR from action of the Board of Education of the Lyons Central School District and Superintendent Denise L. Dzikowski regarding shared decision-making.

Decision No. 17,364

(April 2, 2018)

Robert T. Reilly, Esq., attorney for petitioner, Jennifer N. Coffey, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Heather M. Cole, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from action of the Board of Education of the Lyons Central School District (“respondent board”) and Superintendent Denise L. Dzikowski (“respondent superintendent”) (collectively “respondents”) concerning shared decision-making.  The appeal must be sustained in part.

Petitioner is a school district employee, president of the Lyons Teachers Association, and member of the district’s Pre-K to 12 District Leadership Team (the “DLT”), which serves as the district’s shared decision-making team organized under 8 NYCRR §100.11.  Pursuant to 8 NYCRR §100.11, a shared decision-making plan (the “Plan”) was initially developed and adopted in or about 1994 and has been revised and submitted to the State Education Department (“Department”) for biennial approval since in or about 1996.  On January 29, 2013, respondent revised and approved the Plan and filed it with the Department.  In the fall of 2014, the DLT began discussing its biennial review and revision of the 2013-2015 Plan.  Three DLT meetings were held, in September, October, and November 2014.  The parties dispute the facts with respect to the November 18, 2014 meeting, but the Plan was ultimately approved by the board on January 27, 2015 and submitted to the Department on January 29, 2015.  This appeal ensued.

Petitioner asserts that respondent superintendent, by failing to obtain a “consensus” of all members of the DLT prior to sending the Plan to the board for approval, and respondent board, by approving the Plan “that lacked consensus,” violated Article XII of the Plan and 8 NYCRR §100.11(f) and (d)(1).  Petitioner also asserts that respondent board improperly appointed one of its own members to serve on the DLT, in violation of 8 NYCRR §100.11.

Respondents assert that petitioner fails to state a claim upon which relief may be granted.  They assert that, prior to presenting the Plan to the board for approval, they sought endorsement from the DLT and provided an opportunity for the DLT to consult and fully participate in the Plan’s development.  Respondents maintain that they complied with the provisions 8 NYCRR §100.11 in all respects. 

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 asserts that respondent superintendent, by failing to obtain “consensus” of all members of the DLT prior to sending the Plan to the board for approval, and respondent board, by approving the Plan “that lacked consensus,” violated Article XII of the Plan and 8 NYCRR §100.11(f) and (d)(1). 

Section 100.11(d)(1) of the Commissioner's regulations provides, in pertinent part, as follows:

The district's plan shall be adopted by the board of education or BOCES at a public meeting after consultation with and full participation by the designated representatives of the administrators, teachers and parents, and after seeking endorsement of the plan by such designated representatives.

Further, §100.11(f) of the Commissioner's regulations provides that any “amendment or recertification of a plan shall be developed and adopted in the manner described by subdivision (b) and paragraphs (d)(1) and (2)” of 8 NYCRR §100.11.

The record indicates that the DLT held three meetings in September, October, and November 2014, to discuss updates and revisions to the 2013-2015 Plan, and that following each meeting, respondent superintendent circulated by email a written memorialization of the updates and revisions agreed upon at each meeting.  The record also indicates that respondent superintendent attempted to schedule a final meeting in December 2014, but was unable to find a date that enough members could attend.  By email dated December 9, 2014, respondent superintendent circulated a revised draft plan and requested that the DLT members submit “any last minute thoughts or catch any typos.”  She indicated that “[t]he purpose wasn’t to go through and repeat all the work we have done so it shouldn’t be too time consuming.”  In response to respondent superintendent’s email, two members of the DLT who were not present at the November 2014 meeting replied with comments and questions, which included proposed substantive changes.  Petitioner also replied with comments and questions, which also included proposed substantive changes.  By emails dated January 12, 2015, the assistant superintendent responded that “[t]his last round of feedback related to editing, and not [to] changing the concepts, which were agreed upon at each meeting” and respondent superintendent advised the DLT that she would be presenting the final document to the board the next day for approval.

Petitioner asserts that respondent superintendent, by failing to obtain “consensus” of all members of the DLT prior to sending the Plan to respondent board for approval, and respondent board, by approving the Plan “that lacked consensus,” violated 8 NYCRR §100.11(f) and (d)(1).  However, petitioner has misinterpreted the language of that section.  The regulation requires a board of education to seek the endorsement of a plan after the committee has had an opportunity to consult and fully participate in the plan's development (Appeal of St. Victor, 33 Ed Dept Rep 679, Decision No. 13,194).  There is no requirement that respondents obtain a consensus, so long as respondents consult with the committee and seek its endorsement of the Plan (Appeal of Newburgh Teachers Association, et al., 34 Ed Dept Rep 621, Decision No. 13,431; Appeal of Passino, 34 id. 6, Decision No. 13,214).  The record indicates that respondent board consulted with the designated representatives of the DLT and sought their participation with respect to the Plan.  Because I find that respondents have complied with the requirements of 8 NYCRR §100.11(d), there is no basis to annul the adoption of the shared decision-making plan.

To the extent petitioner alleges that respondents violated Article XII of the Plan by failing to obtain a “consensus” of all members of the DLT, petitioner has failed to meet his burden of proof.  Petitioner asserts that, despite objections to and “a clear lack of consensus on the [p]lan by the [team], [respondent s]uperintendent sent a draft of the [p]lan to [respondent board] for review ... on or about January 13, 2015.”  Article XII of the 2013-2015 plan requires that revisions “must be adopted by consensus of the [DLT].”  The record indicates that the DLT met on three occasions in September, October, and November, 2014 to discuss updates and revisions to the 2013-2015 Plan, and that updates and revisions to the 2013-2015 Plan were discussed at those meetings.  According to respondents, once a consensus was reached on a particular issue, the DLT would not readdress the issue in the future.  Following the September and October 2014 DLT meetings, respondent superintendent circulated to the DLT a written document memorializing the updates and revisions discussed to reflect the consensus at each meeting.  With respect to the November 18, 2014 meeting, respondents assert that a poll was taken among the DLT members in attendance to cast final votes on the revised biennial Plan, by a showing of “thumbs up” or “thumbs down.”  Respondents submit affidavits from respondent superintendent and the assistant superintendent indicating that all DLT members present on that date, including petitioner, gave a “thumbs up” signal to indicate their consent to the substance of the 2013-2015 Plan as presented.  Respondent superintendent further indicates that, following the November 18, 2014 meeting, she obtained either verbal or written consent to the written memorialization of the updates agreed upon and circulated.  In reply, petitioner submits an affidavit from himself in which he denies giving a “thumbs up” signal indicating consent to the revisions and updates to the 2013-2015 Plan.  However, I find that petitioner’s affidavit, which is not supported by affidavits from any other participants at the November 18, 2014 meeting, is insufficient to refute the affidavits from respondent superintendent and assistant superintendent.  Respondents contend that there was agreement by team members that the team would not revisit issues once a consensus was reached on that issue, and petitioner has not provided any evidence to refute that contention. 

Since petitioner has not refuted respondents’ contention that the team members attending the November 18, 2014 meeting reached consensus on final substantive revisions to the 2013-2015 Plan, I cannot conclude that petitioner met his burden of proving that respondents violated Article XII of the Plan by failing to obtain consensus of all members of the DLT.  An agreement that issues would not be revisited once decided by the team does indeed imply that team members who do not attend a meeting at which determinations are made are bound by the decisions made by the team at that meeting.  The fact that two members who were not in attendance subsequently sought to make additional substantive changes does not establish that a consensus was not reached at the November 18, 2014 meeting.  Contrary to petitioner’s arguments, the term “consensus” is ambiguous.  Petitioner relies upon the definition of “consensus” as it appears in the Merriam-Webster Online Dictionary: (1)(a) general agreement: unanimity; (b) the judgment arrived at by most of those concerned; (2) group solidarity in sentiment and belief.   On its face, this definition is ambiguous in that it speaks of general agreement and unanimity and then refers to a judgment by most of those concerned.  Moreover, “consensus” has been interpreted by at least one New York court to mean “judgment arrived at by most of those concerned” (emphasis added) (Am. Soc. for Prevention of Cruelty to Animals v. Bd. of Trustees of State Univ. of New York, State Univ. of New York at Stony Brook, 147 Misc2d 847, 855 [Sup Ct 1990], citing Webster's New Collegiate Dictionary, 150th Anniversary Edition).   Petitioner has not provided evidence that those who drafted Article XII of the Plan intended the term to require unanimity of all members of the team on all issues.  On this record, I have no basis for concluding that unanimity was required once the team reached consensus on the substance of the final plan at the November 18, 2014 meeting.

In any event, the fact that respondent superintendent subsequently circulated a revised version of the Plan seeking any minor editorial changes does not refute respondents’ argument that there was consensus of the DLT as a whole on the substance of the revisions to the Plan on November 18, 2014.  Therefore, petitioner has failed to carry his burden in this regard.

Finally, petitioner challenges the board’s appointment of one of its members to the DLT.  Section 100.11 of the Commissioner’s regulations lists the mandatory participants to the shared decision-making process and specifically requires that the district plan "be developed in collaboration with a committee composed of respondent superintendent of schools, administrators ... teachers ... and parents...." As the Commissioner noted in Appeal of United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO, 34 Ed Dept Rep 528, Decision No. 13,403, the intent of the regulation is for board members to work in collaboration with the district planning committee and not to serve on the committee itself.  The appointment of a board member to the DLT violates §100.11.  However, on this record, there is no evidence that this defect requires the annulment of the Plan.  Therefore, I will not set aside the plan on this basis (see Appeal of Trombley, 39 Ed Dept Rep 115, Decision No. 14,189).  Nevertheless, respondents are reminded that in future biennial reviews, board members should not serve on the planning committee designated by §100.11(b) and (f).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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