Decision No. 18,053
Appeal of STEVEN WHITE from action of the Board of Education of the East Ramapo Central School District and the Community Education Center, a division of the Community Outreach Center, Inc. regarding a contract.
Decision No. 18,053
(October 26, 2021)
Harris Beach PLLC, attorneys for respondent East Ramapo Central School District, Douglas E. Gerhardt, Esq., of counsel
Shebitz Berman & Delforte, P.C., attorneys for respondent Community Education Center, Matthew J. Delforte, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the East Ramapo Central School District (“board” or “respondent”) awarding a contract to disperse funds under the federal Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) to the Community Education Center (“CEC”), a division of the Community Outreach Center (“COC”) (collectively, “respondents”) for the purpose of providing equitable services to nonpublic schools. The appeal must be dismissed.
The COVID-19 pandemic occasioned unprecedented State and federal aid. One such source, the CARES Act (Pub. L. No 116-136, 134 Stat. 281 ), allocated $1.037 billion in Elementary and Secondary School Emergency Relief (“ESSER”) funds and $164.2 million in Governor’s Emergency Education Relief (“GEER”) funds to the State of New York. The State Education Department determined that the East Ramapo Central School District (“ERCSD” or “District”) was entitled to $22.3 million of these federal funds. The CARES Act requires local educational agencies (“LEAs”) to use a portion of their CARES award to provide equitable services to students and teachers in nonpublic schools within the district.
Through a request for proposals (“RFP”) process, ERCSD solicited proposals from interested and qualified providers to deliver services to nonpublic schools supported by funds from the CARES Act. On December 7, 2020, CEC submitted a proposal to ERCSD in response to the RFP. At its January 19, 2021 meeting, the board approved the award of the CARES Act contract (the “contract”) to CEC. Pursuant to the contract, CEC would be reimbursed with funds obtained through the nonpublic school allocation of the CARES Act, an administrative fee of “no more than 7% of the total amount of funds expended by nonpublic schools.” This appeal ensued. A request for interim relief was denied on March 24, 2021.
Petitioner, a district resident, asserts that the vote to award the contract to the CEC should be voided, among other reasons, because:
- CEC was not the lowest responsible bidder, which violated General Municipal Law § 103 and Education Law § 305 (14) (2);
- the board was not told about the other responses to the RFP in violation of General Municipal Law §§ 103 (2) and 103-e;
- the vote to award the contract should have been postponed until after a court-mandated special election and the concomitant installation of new board members; 
- CEC is not a “responsible bidder” as required by General Municipal Law § 103 (2) because it has previously failed to administer equitable services from federal awards;
- CEC’s executive director is not sufficiently “independent” from the nonpublic school community, as required by the CARES Act; and
- the award amounts to a “quid pro quo” because CEC’s executive director, in conjunction with current and former board members, engaged in side-dealings and otherwise exerted outsized influence in board decisions.
For relief, petitioner requests that I reverse the January 19, 2021 vote of the district awarding the contract to CEC and void the resultant contract.
Respondents assert a host of procedural defenses, including lack of “primary” jurisdiction over claimed violations of the General Municipal Law, lack of standing, and mootness. On the merits, respondents argue that petitioner fails to state a claim upon which relief can be granted because the CARES Act awards are professional services contracts to which the General Municipal Law competitive bidding requirements do not apply.
Initially, I must address a procedural matter relating to the scope of petitioner’s reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised 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.
Petitioner’s claims of non-compliance with applicable competitive bidding statutes and his disagreement with the board’s assessment of bidder responsibility must be dismissed for lack of standing. 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 Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853). Only an individual who is directly affected by an action has standing to commence an appeal therefrom (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).
Petitioner contends that there has been an illegal expenditure of district funds because respondents violated applicable competitive bidding statutes and the CARES Act. These claims, however, do not present an injury “distinct” from that experienced by “the public at large” (Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579, 587 ). Therefore, petitioner’s claims of procedural impropriety in the awarding of the contract must be dismissed for lack of standing (see id.; Appeal of Roth, 50 Ed Dept Rep, Decision No. 16,171 [petitioner lacked standing to challenge contract award as she alleged “technical non-compliance with applicable competitive bidding statutes and her disagreement with the board’s assessment of bidder responsibility”]).
However, the Commissioner has long recognized that district residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797; Appeal of Russo, 47 id. 429, Decision No. 15,744; Appeals of American Quality Beverages, LLC, 42 id. 144, Decision No. 14,804). Therefore, petitioner has standing to assert this claim, which is addressed below.
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).
First, petitioner alleges that respondent CEC is not sufficiently “independent” of the nonpublic school community, which renders the contract void. The CARES Act requires that any services delivered to nonpublic schools “must be provided by employees of a public agency or through a contract, be independent of the private school, and be under control and supervision of the public agency.” Petitioner states that the executive director of the CEC is also the executive director of the Yeshiva Association of Rockland County (“YARC”), and that 96 percent of the private schools to which the CEC will be providing the CARES Act funding are members of YARC. The United States Department of Education (“USDOE”) has explained that “whether a contractor is independent of a private school in the provision of equitable services depends on the extent to which the contractor has administrative or fiscal direction and control over the private school ....” USDOE further suggests that “a membership organization with no authority over the operations of its member schools likely would be considered independent of such schools.” These are the circumstances here. The executive director indicates in an affidavit that he “ha[s] no financial stake in any of the nonpublic schools being served by the Contract,” is “not a board member [of] any such schools,” and lacks “any control over these schools.” As such—and mindful of USDOE’s interpretive guidance—I cannot find that respondents violated the CARES Act in awarding the equitable services contract to CEC based on the executive director’s connection with YARC.
Petitioner further speculates that the award of the contract to CEC constituted a “quid pro quo” because CEC’s executive director and board members, past and present, have engaged in “side-dealings” that have resulted in “overwhelming influence in ERCSD School Board decisions.” As evidence, petitioner asserts that ERCSD has a “long history of awarding contracts to the entity.” Petitioner also maintains that communications between the former ERCSD board president and CEC’s director disclosed at a trial in a civil action alleging a violation of the Voting Rights Act (VRA) demonstrate the executive director of CEC’s influence over ERCSD’s affairs; petitioner’s implication is that the former board president ensured the award of the contract to CEC to protect his board seat.
Past transgressions, however, do not demonstrate present impropriety. This is why evidence of prior bad acts is generally inadmissible in criminal proceedings: “‘[t]he natural and inevitable tendency ... is to give excessive weight to the [prior act] ..., irrespective of the accused’s guilt of the present charge’” (People v Anderson, 159 AD3d 1592, 1597 [2d Dept 2018], quoting People v Cass, 18 NY3d 553, 559 ). As such, evidence from the VRA trial concerning dilution of minority residents’ votes does not establish that the contract award to CEC was illegal.
The record further supports a finding that the board awarded the contract in a reasonable manner. While not required to do so, ERCSD issued an RFP to which it received four responses. A team of district employees, including the executive director of external school operations and the interim executive director of grants and proposals, completed a rubric/score sheet assessing the strengths and weaknesses of each response. The conclusion of the team, as well as the then-superintendent, was that CEC represented the “best value” to deliver equitable services to nonpublic schools. Although petitioner disagrees with the analysis and conclusions of some of these reviewers, none of his objections rise to the level of illegality. Therefore, petitioner has failed to prove that he is entitled to his requested relief.
My conclusion herein should not be interpreted as an endorsement of the conduct unearthed during the VRA trial. In its decision, the United States District Court for the Southern District of New York (Seibel, J.) held that the at-large election system used by the district to elect members to its board resulted in dilution of Black and Latino residents’ votes in violation of Section 2 of the Voting Rights Act of 1965, 52 U.S.C § 10301 (Natl. Assn. for Advancement of Colored People, Spring Valley Branch v E. Ramapo Cent. Sch. Dist., 462 F Supp 3d 368 [SD NY 2020]). The United States Court of Appeals for the Second Circuit upheld this determination, placing particular importance on the following factors:
“the near-perfect correlation between race and school-type; the scant evidence supporting the District’s claim that policy preferences, not race, cause election results; the Board’s blatant neglect of minority needs; the lack of minority-preferred success in elections; the exclusive, white-dominated slating organization; and evidence suggesting the District acted in bad faith throughout the litigation”
(Clerveaux v E. Ramapo Cent. Sch. Dist., 984 F3d 213, 219 [2d Cir 2021]). One participant in the scheme underlying the VRA litigation was the executive director of CEC. The District Court opinion includes text messages between the executive director and district officials reflecting his participation in the discriminatory “slating” process.
The outcome of the VRA trial is emblematic of the school governance issues that have plagued the district for years. Academic and fiscal monitors have been appointed in the district for over five years to provide oversight, guidance, and technical assistance related to the educational and fiscal policies, practices, programs, and decisions of the district, board, and superintendent. Despite these monitors’ efforts, many board members have devoted their efforts to maintaining political power rather than meeting the needs of the district’s students. I admonish the district and the board to take all steps necessary to ensure that the district’s leadership and resources are focused on the goal of providing successful outcomes for all of the district’s students.
To the extent petitioner’s remaining arguments are not specifically addressed herein, I find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 This obligation arose from orders in litigation filed by the National Association for the Advancement of Colored People (NAACP) against the District, discussed at greater length herein (see Clerveaux v E. Ramapo Cent. Sch. Dist., 984 F3d 213 [2d Cir 2021]).
 United States Department of Education, “Providing Equitable Services to Eligible Private School Children, Teachers, and Families Updated Non-Regulatory Guidance,” Oct. 7, 2019, available at https://www2.ed.gov/about/inits/ed/non-public-education/files/equitable-services-guidance-100419.pdf (last accessed Oct. 18, 2021).
 Candidate slating has special significance in claims arising under the VRA. The overall inquiry in a section 2 violation is “whether, under the totality of the circumstances, the challenged practice impairs the ability of the minority voters to participate equally in the political process” (United States v Vil. of Port Chester, 704 F Supp 2d 411, 418 [SD NY 2010]). One of the seven factors to consider in making this evaluation is: “if there is a candidate slating process, whether the members of the minority group have been denied access to that process” (id. at 419).