Decision No. 17,583
Appeal of RHONDA TULIP and KAREN FERGUSON from action of the Board of Education of the City School District of the City of Glen Cove, Superintendent Maria Rianna, and Katie Prudente regarding shared decision-making.
Decision No. 17,583
(February 11, 2019)
Davis & Ferber, LLP, attorneys for petitioners, Alex J. Kaminski, Esq., of counsel
Ingerman Smith LLP, attorneys for respondents, Steven A. Goodstadt, Esq., of counsel
ELIA, Commissioner.--Petitioners appeal from action of the Board of Education of the Glen Cove City School District (“respondent board”) and its superintendent, Maria Rianna (“superintendent Rianna”) (collectively, “respondents”) concerning adherence to the district’s shared decision-making plan. The appeal must be dismissed.
Petitioner Rhonda Tulip is a school district employee and member of the district’s shared decision-making screening committee. Petitioner Karen Ferguson is President of the Glen Cove Teachers Association, the bargaining unit for teachers in the district, and a member of the district steering committee since its inception. In June 2016, respondent board adopted a district plan for shared decision-making (“the plan”), in accordance with Commissioner’s regulations. The plan provides for screening committees as part of the hiring process for teachers, supervisors, and administrators. The plan indicates that the screening committee will review and interview candidates for employment provided by the human resources department and will determine by consensus the selection of finalists who will be recommended to the superintendent for additional interviews. The plan states that the committee should recommend two or three candidates. The superintendent must then consider the recommended candidates and may either recommend a candidate to respondent board or reject all of the candidates. The plan further states that, if the superintendent rejects all of the candidates, “the screening process would then be carried out again with a new pool of candidates.”
The parties do not dispute that on or about August 8, 2017, the screening committee met to consider a list of candidates provided by the district’s human resources department for the position of assistant principal of respondent’s high school. The list of candidates included respondent Katie Prudente.
The parties disagree as to which candidates it reached a consensus to recommend to superintendent Rianna. According to petitioners, the screening committee “reached a consensus on only two (2) finalists who were to be recommended to [r]espondent [s]uperintendent Rianna” and that, “despite the urging of [respondent board’s high school] Principal Antonio Santana (one of the Chairs of the Screening Committee,” respondent Prudente was not one of the two. According to respondents, on or about August 8, 2017, superintendent Rianna received an email from the high school principal (“the principal”) indicating that the screening committee had selected three candidates, including respondent Prudente, for her consideration. After interviewing the candidates, superintendent Rianna recommended respondent Prudente to respondent board. Respondent Prudente was appointed to respondent board’s high school assistant principal position on September 6, 2017. This appeal ensued.
Petitioners argue that respondents violated the district’s plan by recommending and appointing respondent Prudente to the high school assistant principal position. Petitioners also argue that respondents violated the Commissioner’s shared decision-making regulations “by not operating within the purpose and spirt” of the regulations; “by not following a Plan it adopted;” and by not appointing one of the two candidates properly put forward by the screening committee, or rejecting both candidates and returning the matter to the screening committee for consideration of a new pool of candidates.
As relief, petitioners request that I vacate respondents’ decisions regarding the recommendation and appointment of respondent Prudente. Petitioners seek a declaration that respondents’ actions were arbitrary and capricious and in violation of the shared decision-making plan and the regulations of the Commissioner. Finally, petitioners seek an order requiring respondents to either appoint one of the two candidates properly put forth by the screening committee or reject both candidates and return the matter to the screening committee for consideration of a new pool of candidates.
Respondents argue that the appeal must be dismissed for failure to state a claim upon which relief may be granted and because petitioners request a declaratory ruling. Respondents further argue that superintendent Rianna “reasonably relied” on the email sent to her from the principal and that, in any event, the district’s plan does not preclude the superintendent of schools from recommending a candidate who was not recommended by the screening committee. Finally, respondents maintain that the district complied with its shared decision-making plan.
I will first address the procedural matters. Respondents object to the scope of petitioners’ 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). 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.
Respondents also argue that the appeal must be dismissed because petitioners seek a declaratory ruling. It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899). However, petitioners do not seek an advisory opinion or a declaration of the rights of the parties in the abstract and without an underlying case or controversy. Rather, they seek an order vacating the determinations to recommend and appoint respondent Prudente and declaring that such actions “were arbitrary and capricious in violation of the Shared Decision Making Plan and the Commissioner’s regulations.” Although petitioners do use the word “declare,” it is in the sense of a finding by the Commissioner that respondents’ actions were arbitrary and capricious and not in the sense of a declaration of the rights of the parties (cf. Appeal of Islip Teacher Association, 52 Ed Dept Rep, Decision No. 16,418 [rejecting as a request for a declaratory ruling petitioner’s request for an order directing the district to adhere to the conflict resolution procedures in the district’s shared decision-making plan in the future]). Therefore, under the circumstances presented, I reject respondents’ argument that petitioners are seeking an impermissible declaratory ruling and I decline to dismiss the appeal on such ground.
Turning to the merits, 8 NYCRR §100.11 establishes the procedures for school-based planning and shared decision-making. The regulation requires that boards of education and each board of cooperative educational services (“BOCES”) develop and adopt a district plan for the participation by teachers and parents with administrators and school board members in school-based planning and shared decision-making. In this case, respondents have adopted a shared decision-making plan that contains very specific procedural requirements for the hiring of teachers, supervisors and administrators involving a screening committee. Petitioners allege that the submission of respondent Prudente as a candidate for the assistant principal position to superintendent Rianna violated the district’s shared decision-making plan because the screening committee did not reach a consensus to recommend respondent Prudente for the assistant principal position.
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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
As respondents contend, the hiring and appointment of employees, including school administrators such as respondent Prudente, are non-delegable statutory duties and obligations of a board of education (Education Law §2503 and §2509[b][ii]; Appeal of Barney, et. al, 44 Ed Dept Rep 255; Decision No. 14,190; Appeal of the Lawrence Teachers’ Ass’n, 39 id. 119, Decision No. 14,190). Petitioners contend that the screening committee never reached consensus on a recommendation of respondent Prudente to the assistant principal position and, therefore, that respondent board violated the shared decision-making plan by appointing her. However, in various contexts the Commissioner has ruled that a board of education’s statutory duties and responsibilities are not delegable to a shared decision-making team (Appeals of Zaleski and Gimmi, 36 Ed Dept Rep 284, Decision No. 13,725 [curriculum changes]; Appeals of Moravia Teachers’ Ass’n., 36 id. 413; Decision No. 13,764 [scheduling of staff development days and adoption of student discipline code]; Appeal of Kastberg, et al., 35 id., 208, Decision No. 13,518) [development of school district budget],. In Appeal of the Lawrence Teachers’ Ass’n, 39 Ed Dep Rep 119, Decision No. 14,190), the Commissioner noted that the hiring of employees is not delegable to a shared decision- making team. Where a district policy constitutes an unlawful delegation of the board’s powers it is void as against public policy (see Cohoes City School Dist. v. Cohoes Teachers’ Ass’n, 40 NY2d 774; Appeal of Roberts, et al., 49 Ed Dept Rep 354, Decision No. 16,049).
In this case, after stating that the superintendent of schools will interview all candidates recommended by the screening committee, the shared decision-making plan includes the following language: “[i]t will be the Superintendent’s prerogative to recommend candidate(s) to the Board of Education ....” In addition, the plan provides that it is “the prerogative of the Superintendent to reject all candidates” and, further, that if the finalists recommended by the screening committee are not acceptable to the superintendent or the board of education, “the committee will reconvene with a new pool of candidates.”
Respondents argue, among other things, that the superintendent acted pursuant to the language that reserves to the superintendent the prerogative to recommend candidates. Petitioners argue that this language was not intended to authorize the superintendent to recommend a candidate who was not recommended by the screening committee. In support of that position, petitioners submit an affidavit of petitioner Ferguson in which she attests that she participated in the negotiation and adoption of the district’s shared decision-making plan and that permitting the superintendent or the board to hire candidates who were not part of a consensus of the screening committee was never discussed or intended.
Regardless of the intent or ambiguity of this provision, however, to the extent the shared decision-making plan is interpreted to preclude the board of education from considering a recommendation of the superintendent for appointment of a candidate who has not been recommended by the screening committee, such plan is void as against public policy. The board of education could properly delegate the screening of candidates to the shared decision-making team and could allow the shared decision-making team to adopt procedures for selection of candidates consistent with board policy and the statutory authority of the board (see Appeal of the Lawrence Teachers’ Ass’n, 39 Ed Dept Rep 119, Decision No. 14,190) however, allowing the shared decision-making team to make a binding decision to reject a candidate would constitute an unlawful delegation of the board’s powers. While the shared decision-making plan clearly provides that the screening committee will reconvene if the finalists are not acceptable to the superintendent or the board or if the superintendent rejects all candidates, such provisions do not preserve the board’s authority to hire employees of its choice and impermissibly allows the shared decision-making team to make a final decision on whether to select a particular candidate.
The parties dispute whether the screening committee reached consensus on whether to recommend respondent Prudente for appointment. Even if it did not, however, if the shared-decision making plan is interpreted to preclude the superintendent from recommending a candidate who has been screened by the screening committee and rejected by that committee, the plan would be void as against public policy. Therefore, I reject petitioners’ arguments that the appointment of respondent Prudente was in violation of the shared decision-making plan and §100.11 of the Commissioner’s regulations and must be annulled. The hiring of respondent Prudente was within the non-delegable statutory authority of the board of education, and the appeal must be dismissed.
Although the appeal must be dismissed on this record, I urge respondent to review its shared decision-making plan, in accordance with 8 NYCRR §100.11 and this decision, and to consider any clarifications that may be necessary and appropriate.
In light of this determination, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 According to an affidavit submitted with this appeal from petitioner Ferguson, the steering committee is “charged with incorporating the [district’s plan] in compliance with 8 NYCRR §100.11.”
 The plan indicates that “a consensus decision has been reached when one of the following occurs: Everyone of [sic] the committee actively supports, Everyone on the committee can live with the decision or No one on the team will sabotage the decision.”
 The record indicates that Superintendent Rianna interviewed only two of the three candidates because the other candidate withdrew her candidacy.