Decision No. 13,616

(June 8, 1996)

Cahn Wishod & Lamb, LLP, attorneys for respondent, Eugene R. Barnosky, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the process for biennial review of the shared decisionmaking plan of the Board of Education of the Commack Union Free School District ("respondent"). The appeal must be sustained in part.

Petitioner is a parent member of respondent's shared decisionmaking (SDM) planning committee. Under 8 NYCRR 100.11, respondent is required to conduct a biennial review of the district's shared decisionmaking plan and submit that plan to the State Education Department (SED) by February 1, 1996. On November 8, 1995, respondent received written guidelines from SED concerning the biennial review. Petitioner and other parent representatives received materials from respondent concerning the biennial review on January 5, 1996. A meeting of the district's SDM planning committee was scheduled for January 11, 1996 to review the materials compiled for the biennial review. Due to scheduling conflicts and illness, the three parent representatives indicated that they could not attend that meeting.  Respondent wanted to present the biennial review at its January 18, 1996 board meeting in order to submit the district's shared decisionmaking plan to SED by the February 1st deadline. Toward this end, respondent's superintendent and another planning committee member met with the parent representatives on January 18, 1996 to seek their endorsement of the biennial review, but the parent representatives refused to endorse it. Respondent filed its shared decisionmaking plan with SED on January 31, 1996. This appeal was commenced on February 27, 1996.

Petitioner alleges that respondent's biennial review was conducted improperly and raises a number of issues, including the propriety of board members on the district planning committee, the composition of the building level teams, restrictions on parent members, topics for discussion under shared decisionmaking, open meeting law questions and training issues. Petitioner seeks an order requiring respondent to reconvene the district wide planning committee to conduct a proper biennial review, review and reevaluate the plan, adopt it at a public meeting after consultation and full participation of all stakeholder groups, and seeks direction on the various issues raised in the petition concerning actions of respondent with respect to shared decision making.

Respondent contends that it has complied in all respects with the biennial review regulation. Respondent raises a number of procedural defenses, including that the petition fails to state a cause of action, that the Commissioner lacks jurisdiction to hear Open Meetings Law claims, that the petition does not present a justiciable controversy over which the Commissioner may exercise his appellate jurisdiction and that the petition is untimely.

Before reaching the merits, I will address respondent's procedural claims that the petition in this appeal is not clear and concise. Section 275.10 of the Commissioner's regulations provides that a petition:

I note that petitioner is not represented by counsel. In such cases, a liberal interpretation of the rules is appropriate, particularly where there is no evidence of prejudice to the opposing party (Appeal of Wheeler, et al., 33 Ed Dept Rep 61; Application of a Child with a Handicapping Condition, 28 id. 519). I find that while the petition raises numerous allegations regarding the shared decision making process, it adequately states petitioner's claim that the biennial review was conducted improperly. I note that respondent has adequately addressed petitioner's primary allegations in its answer. Because respondent has failed to establish that it was prejudiced, I will not dismiss the appeal on that basis (Appeal of Schechter, et al., 28 Ed Dept Rep 118).

Respondent also contends that the appeal is untimely since respondent sought parental endorsement of its biennial review on January 18 and petitioner's appeal was commenced on February 27, 1996. An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Keen, 32 Ed Dept Rep 299; Appeal of Magee, 30 id. 479). However, the record indicates that respondent filed its biennial review on January 31, 1996 and petitioner's primary claim regards the adoption of the biennial review. Since petitioner commenced this appeal within 30 days of respondent's filing of the biennial review, the appeal is deemed to be timely commenced on February 27, 1996.

Turning to the merits, petitioner asserts that respondent did not properly conduct its biennial review and seek the endorsement of parent representatives on the shared decisionmaking planning committee. Section 100.11(f) of the Commissioner's regulations requires that:

That section requires that any amendment or recertification of a plan be done after consultation with and full participation of the designated representatives (Appeal of Passino, 34 Ed Dept Rep 6). Based on the record before me, I cannot conclude that respondent conducted the biennial review of the plan in a manner consistent with the regulations that require "consultation with and full participation of" designated representatives. It is not sufficient for respondent's superintendent and another committee member to meet with parent representatives to attempt to seek their endorsement for the biennial review in an expedited manner. The record before me indicates that the parent representatives had legitimate concerns about the biennial review that were minimized by respondent. Therefore, I remand the biennial review to respondent for action consistent with the regulations and this decision.

Petitioner also challenges the service of board members on the district's planning committee. Section 100.11 of the regulations lists the mandatory participants to the shared decisionmaking process and specifically states that the district plan "be developed in collaboration with a committee composed of the 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, 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. Therefore, it is inappropriate for respondent's board members to serve on the district-wide planning committee. The fact that the district's plan was previously approved by SED does not preclude the Commissioner from finding that board member representation is inappropriate, as respondent suggests.

Finally, I note that respondent is correct that I lack jurisdiction to decide petitioner's Open Meetings Law claims. I have repeatedly held that alleged violations of the Open Meetings Law must be pursued in a judicial proceeding in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules, or in a judicial action for declaratory judgment and injunctive relief, and may not be the basis of an appeal to the Commissioner of Education (Public Officers Law '107; Appeal of Loriz, 33 Ed Dept Rep 50; Appeal of Brown, 32 id. 212).

Due to the numerous issues raised by petitioner concerning shared decisionmaking in this school district, I will direct my Office of Regional School Services to contact the parties to attempt to resolve the issues raised by petitioner that are not addressed in this decision.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent's shared decisionmaking biennial review be remanded to respondent

IT IS FURTHER ORDERED that respondent reconvene its district wide planning committee for the purpose of conducting a biennial review in accordance with the regulations and this decision.

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