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Decision No. 13,194

Appeal of DIANNA ST. VICTOR from action of the Board of Education of the Edwin Gould Academy Ramapo Union Free School District regarding adoption of a shared decisionmaking plan.

Decision No. 13,194

(June 3, 1994)

James R. Sandner, Esq., attorney for petitioner, John J. Naun, Esq., of counsel

Shaw & Silveira, Esqs., attorneys for respondent, Garrett L. Silveira, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the adoption of a shared decisionmaking plan by the Board of Education of the Edwin Gould Academy Ramapo Union Free School District ("respondent"). The appeal must be dismissed.

Petitioner is the president of the teachers association and a member of respondent's shared decisionmaking committee. Pursuant to 8 NYCRR 100.11, a committee was established to develop a shared decisionmaking plan. Section 100.11(b) of that regulation provides in pertinent part:

(b) By February 1, 1994, each public school district board of education and each board of cooperative educational services (BOCES) shall 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 decisionmaking. Such district plan shall be developed in collaboration with a committee composed of the superintendent of schools, administrators selected by the district's administrative bargaining organization(s), teachers selected by the teachers' collective bargaining organization(s), and parents (not employed by the district or a collective bargaining organization representing teachers or administrators in the district) selected by school-related parent organizations. . . .

Faced with the regulatory deadline of February 1, 1994, the committee met on January 24, 1994 to prepare a final draft of the shared decisionmaking plan. At the conclusion of that meeting, the committee agreed to present the plan to respondent, with a note explaining that committee representatives for the teachers and parents did not agree to all elements of the plan. Their disagreement involved a proposed eight-step process for resolving disputes concerning educational issues. While the teacher and parent representatives accepted the first six steps, they did not endorse the last two steps.

The plan was presented to respondent on January 26, 1994 with the note that the teacher and parent representatives did not agree to the final two steps of the dispute resolution process. An explanation of the differing committee positions regarding the inclusion of the two final steps to resolve disputes was provided by an administrative committee member since no teacher or parent member attended the January 26th meeting. After reviewing the plan, hearing the explanation about the single area of dispute and believing that consensus could not be reached on that one issue, respondent adopted the plan in its entirety, including the final two steps of the dispute resolution process. Respondent also deleted the note stating that teacher and parent representatives of the committee did not agree with the final two steps of the dispute resolution process. This appeal ensued.

As a preliminary matter, petitioner asserts new allegations and issues in her reply which were not included in the petition. Consistent with ''275.3 and 275.14 of the Commissioner's regulations, a reply may only be submitted in response to affirmative defenses and new material raised in an answer. The reply does not provide an opportunity to raise new grounds for relief (Appeal of Eastman Kodak Company, 32 Ed Dept Rep 575; Appeal of Alexandreena D., 30 id. 203; Appeal of Santicola, 29 id. 213), or to buttress allegations in the petition or add assertions which should have been included therein (Appeal of Eastman Kodak Company, supra; Appeal of Brousseau, 31 Ed Dept Rep 155; Appeal of Barbara P., et al., 30 id. 198; Appeal of Pronin, 27 id. 203). Therefore, new allegations in the reply which should have been included in the petition will not be considered here.

Petitioner contends that the shared decisionmaking plan should be annulled. Specifically, petitioner alleges that respondent's adoption of the plan violates '100.11(d) of the Commissioner's regulations. The regulation states in pertinent part:

(1) 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.

Petitioner argues that because all the committee members did not fully agree on all elements of the plan, respondent's adoption of that plan violated 8 NYCRR 100.11(d). Petitioner, however, 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. There is no requirement that the committee agree to all aspects of the plan. The record before me indicates that the committee, including petitioner, had an opportunity to consult and participate in the development of the plan and that respondent sought the endorsement of the plan by the committee. Because respondent has complied with the requirements of 8 NYCRR 100.11(d), there is no basis to annul the adoption of its shared decisionmaking plan.

Petitioner also contends in a conclusory manner that respondent was not authorized to delete from the plan the reference that the teacher and parent representatives did not endorse all aspects of that plan. In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Singh, 30 Ed Dept Rep 284; Appeal of DiMicelli, 28 id. 327; Appeal of Amoia, 28 id. 150). Petitioner offers no legal basis to support her claim that the plan must include a statement that all provisions of the plan were not endorsed by all members of a shared decisionmaking committee.