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Decision No. 13,431

Appeal of NEWBURGH TEACHERS ASSOCIATION, FRANK G. COLONE, PETER GONZALES, DONNA LIEBMAN, EDWARD WINFIELD and JOHN WOLNER, from action of the Board of Education of the Newburgh Enlarged City School District and Superintendent Phillip E. Leahy regarding shared decisionmaking.

Decision No. 13,431

(June 9, 1995)

James R. Sandner, Esq., attorney for petitioners, John H. Jurgens, Esq., of counsel

Shaw & Silveira, Esqs., attorneys for respondent, David S. Shaw, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal respondent's implementation of shared decisionmaking and its adoption of a shared decisionmaking plan. The appeal must be dismissed.

Petitioners are the collective bargaining organization representing teachers in the Newburgh Enlarged City School District and several individual teachers involved in the district's shared decisionmaking process. They appeal the implementation of shared decisionmaking and the adoption of a shared decisionmaking plan by the Board of Education of the Newburgh Enlarged City School District ("respondent"). Respondent's shared decisionmaking steering committee (the "committee") is composed of the superintendent of schools, as well as representatives of various stakeholder groups, including administrators, teachers and parents. Pursuant to Education Law '100.11(b), petitioner teachers association selected the teacher members of the committee.

The committee met several times between October and December 1993. The facts are in dispute as to whether a formal meeting of the committee occurred on January 31, 1994 and whether the superintendent or his designee was present for some of the meetings. The committee reached consensus and adopted a district plan at its meeting on December 16, 1993. On or about December 22, 1993, the committee presented respondent with this plan. Respondent subsequently held two "workshop" sessions at which it reviewed the committee's proposed plan. On January 25, 1994, respondent presented an amended version of the plan to the committee.

At a January 26, 1994 board meeting, petitioner Colone voiced his objection to the amended plan and claimed that it was too late in the process for respondent to make changes to it. Respondent indicated at this meeting that it would make changes to the amended plan consistent with the concerns expressed by representatives of various constituent groups. On January 31, 1994, respondent sought endorsement from the designated representatives on the second amended district plan. The plan was endorsed by administrators and parents, but not by the teachers. Respondent's plan was subsequently approved by the State Education Department on February 11, 1994. This appeal ensued.

Petitioners allege that respondent's method of adopting the district plan was inappropriate, that respondent's amendments to the committee's plan were improper and that respondent failed to seek petitioners' endorsement of the plan. Petitioners also allege that respondent failed to collectively bargain on the issue of shared decisionmaking and that the superintendent failed to attend the majority of the steering committee's meetings.

Respondent contends that the proceedings of the committee complied with the shared decisionmaking regulations, that the plan meets the substantive requirements of those regulations and that it was appropriately adopted. Respondent also contends that petitioner teachers association has waived its right to negotiate changes regarding teacher participation under the plan since it failed to negotiate those changes prior to the plan's adoption.

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

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.

The record in this case indicates that the steering committee held a number of meetings to develop a districtwide shared decisionmaking plan. The plan was presented to respondent board which subsequently amended the plan and presented it to the committee. Petitioners objected to these changes and refused to endorse the plan. Petitioners appear to argue that because respondent did not participate in the development of the plan with the steering committee, it had no right to alter the plan and that respondent's adoption of the plan violated 8 NYCRR 100.11(d). However, petitioners have 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). There is no requirement that respondent adopt a committee's plan without modification, so long as respondent consults with the committee and seeks its endorsement of the plan (Appeal of Passino, 34 Ed Dept Rep 6). The record indicates that respondent modified the committee's plan, consulted with the designated representatives of the committee on those modifications and sought their endorsement of the amended plan. Because I find that 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.

Petitioners also contend that the superintendent did not participate adequately in the development of the plan. The regulation prescribes that the committee shall be "composed of the superintendent of schools, administrators selected by the district's administrative bargaining organizations(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,..." While the purpose of shared decisionmaking is to foster communication among all parties involved in the critical job of educating our children (Appeal of Wilson, 33 Ed Dept Rep 79), the regulation itself does not specify the level of involvement of the designated representatives of the school community in the development of a districtwide shared decisionmaking plan. The

record in this case indicates that the superintendent or his designee was present at some of the steering committee's meetings, although respondent admits that the superintendent did not attend all the meetings due to other obligations. Based upon this record, I cannot conclude that the superintendent's participation was inadequate.

Petitioners further contend that respondent failed to bargain on the issue of site based management and shared decisionmaking. The regulation [8 NYCRR 100.11(b)] states in pertinent part:

"...provided that those portions of the district plan that provide for participation of teachers or administrators in school-based planning and shared decisionmaking may be developed through collective negotiations between the board of education or BOCES and local collective bargaining organizations representing administrators and teachers." (emphasis added)

The record indicates that the parties apparently discussed the issue of shared decisionmaking and the following language was included as a compromise between the parties:

The parties acknowledge that the subject of teacher participation in Site Based Management and Shared Decision Making under Commissioner of Education Regulations remains an open subject of bargaining which the parties shall continue to negotiate following the ratification of the 1991-93 Master Agreement.

However, the parties failed to ultimately reach agreement through the collective bargaining process and petitioners decided to work on shared decisionmaking within the committee structure. While an earlier draft of the shared decisionmaking plan contained language concerning collective negotiations on shared decisionmaking, the plan adopted by respondent did not contain that language. Petitioners appear to seek a ruling that respondent's actions relating to the collective bargaining process were inappropriate. However, while the regulation clearly permits collective bargaining on the subject of shared decisionmaking, it does not require such negotiations. There is nothing in the record which indicates that respondent acted improperly in failing to reach final agreement with petitioners on this issue.

I have reviewed the parties' remaining contentions and find them without merit.