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Decision No. 14,225

Appeal of MICHAEL PATASHNICK from action of the Board of Education of the City School District of the City of Rome concerning a reorganization plan.

Appeal of STEPHEN B. WATERS from action of the Board of Education of the City School District of the City of Rome concerning a reorganization plan.

Decision No. 14,225

(October 13, 1999)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Dennis T. Barrett, Esq., of counsel

MILLS, Commissioner.--In separate appeals, petitioners challenge the decision of the Board of Education of the City School District of the City of Rome ("respondent") to relocate students from the Lake Delta Elementary School to two other elementary buildings in the district. Because petitioners are similarly situated and challenge the same determination, the appeals are consolidated for decision, and must be dismissed.

In 1993, the United States Air Force decided to "realign" Griffiss Air Force Base, resulting in a massive reduction of base-related jobs. This had a significant effect on enrollment in respondent’s district. During the 1991-92 school year, 8,157 students were enrolled in the district. For the 1997-98 school year, enrollment was projected at 6,450.

Following the federal government’s announcement, respondent took a number of steps to reassess its long-range plans. Among other things, it contracted with Education Services Associates of Syracuse to prepare a professional redistricting study for the district. The 140-page report, prepared by Dr. William D. Silky ("the Silky report") was presented to respondent at a public meeting on June 4, 1997.

The Silky report reflects that in 1997, respondent’s district was comprised of 10 elementary schools, two junior high schools and one high school. The report found that the district's elementary schools were operating at only 84% of capacity, and concluded, among other things, that respondent should close one elementary building. Lake Delta was the smallest of the district’s elementary schools, having only one class for each grade level, and a total enrollment of 168. Both reorganization options presented in the Silky report recommended, among other things, converting Lake Delta to an early education center and redistributing the Lake Delta students to the Stokes and/or Ridge Mills elementary schools.

In recommending this course of action, Dr. Silky noted that "Lake Delta is too small of an elementary school to permit efficient use of staff…". Dr. Silky projected that this plan would result in a $265,444 salary savings to the district. For both reorganization options, Dr. Silky suggested that respondent implement the plan to close Lake Delta in the Fall of 1998.

On June 17, 1997 district voters rejected the district’s proposed budget for the 1997-98 school year, which included a projected tax levy increase of $701,016. The proposed budget included funding to operate Lake Delta as an elementary school for the 1997-98 school year. After the defeat of the budget, respondent explored the option of closing Lake Delta, effective for the 1997-98 school year, as a means of reducing the district’s budget. At respondent’s July 2, 1997 board meeting, the district’s Assistant Superintendent for Human Resources and Administration made a presentation showing that the district would save in excess of $260,000 by closing Lake Delta. On July 9, 1997 Dr. Silky presented and discussed his report at a public hearing. On July 10, 1997 respondent convened another public hearing, attended by approximately 130 residents to consider the possible closure of Lake Delta. On July 14, 1997 respondent voted to close Lake Delta, effective September 1, 1997.

On July 29, 1997 district voters approved respondent’s revised budget, which contemplated converting Lake Delta into the district’s early education center. The revised budget contained a projected tax levy increase of $324,147, approximately half of the projected increase presented to voters in the initial budget.

Respondent reassigned the Lake Delta students to the Ridge Mills and Stokes elementary schools for the 1997-98 school year. These appeals ensued. Petitioners’ requests for interim relief were denied on August 13, 1997.

Petitioners contend that the decision to "close" Lake Delta Elementary was arbitrary and capricious and contrary to sound educational policy because, among other things, respondent failed to heed Dr. Silky’s recommendation that any reorganization plan be phased in slowly. In addition, they claim that respondent failed to comply with the provisions of Education Law "402-a for closing a school building. Petitioner Waters also alleges, among other things, that respondent failed to consider various available information and options, and used inaccurate information.

Respondent contends that both petitioners lack standing because they failed to establish that they have been harmed by the decision to close Lake Delta. In the Patashnick appeal, respondent also alleges that the appeal is moot because respondent has already implemented its decision to close Lake Delta. On the merits, respondent contends that its decision was supported by a rational basis and is educationally sound, and that respondent was not obligated to follow the procedures for school closings set forth in Education Law "402-a because those procedures are not mandatory.

In reply, both petitioners assert that they are parents of children who attended Lake Delta, and therefore have standing to bring these appeals.

Before addressing the parties’ contentions, I must address two procedural matters. On October 24, 1997, my office of counsel received a memorandum of law from petitioner Waters in support of his petition. By letter dated October 31, 1997, respondent requested that I reject the memorandum of law as untimely. By letter dated November 3, 1997, petitioner Waters explained that he is not an attorney and labored under the mistaken belief that an extension granted to respondent to October 21, 1997 to serve its memorandum of law also applied to him. Petitioner Waters served his memorandum of law on October 21, 1997.

Pursuant to "276.4 of the Commissioner’s regulations, petitioner was required to serve his memorandum of law within 20 days after service of the answer. However, the Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR "276.4). Although Water’s memorandum of law is untimely, I will accept it based on his explanation.

Respondent also objects to some of the material submitted by petitioners in their respective replies. The purpose of a reply is to respond to procedural defenses or new material contained in an answer, and is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been part of the petition (8 NYCRR "" 275.3 and 275.14; Appeal of Morris, 38 Ed Dept Rep 427, Decision No. 14,066; Appeal of Foshee, 38 id. 346, Decision No. 14,051). Accordingly, I will not consider those portions of petitioners’ replies that constitute new allegations or evidence which is not responsive to new material or affirmative defenses set forth in respondent’s answer.

To maintain an appeal pursuant to Education law "310, a party must be aggrieved in the sense of having suffered personal damage or impairment to his or her civil, personal or property rights (Appeal of Morris, et al., 37 Ed Dept Rep 590, Decision No. 13,936). Although both petitioners neglected to state in their petitions that they are parents of a child who attended Lake Delta, both make such an assertion in their respective reply papers. Accordingly, I find that petitioners have standing to challenge respondent’s decision to close Lake Delta.

As to respondent’s mootness claim, the Commissioner will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of June D., 38 Ed Dept Rep 596, Decision No. 14,101; Appeal of Foshee, supra). Respondent contends that this controversy is moot because respondent has already implemented its reorganization plan. However, there is nothing in the record to suggest that respondent has disposed of the Lake Delta building, or taken other action that would make it impossible for respondent to reverse what has been done. To the contrary, the record reflects that respondent intended to retain the Lake Delta building for its early education program. Accordingly, I find that I can direct respondent to reconsider its decision to "close" Lake Delta if I conclude that respondent’s actions were arbitrary. I acknowledge that any reconsideration by respondent would necessarily take place in the context of the current state of affairs of the district, making it unlikely that respondent would reverse the course it has chosen. However, the fact that petitioners are unlikely to obtain the ultimate result they seek does not render the controversy moot. Unless the building has been disposed of, I find that I have authority to order meaningful relief and decline to dismiss this controversy as moot.

The appeal must, however, be dismissed on the merits. Decisions about school district reorganization and the closing of school buildings are within the discretion of a board of education and will not be set aside unless they are shown to lack a rational basis (Appeal of Malone, 39 Ed Dept Rep ___, Decision No. 14,194; Appeal of Lancaster Parent Alliance, 38 id. 356, Decision No. 14,053). Pursuant to Education Law "1709(3) and (33), a board of education has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (Matter of Older, et al. v. Board of Education, 27 NY2d 333; Appeal of Malone, supra). In such cases, a board’s discretion is broad (Matter of Addabbo v. Donovan, 22 AD2d 383, aff’d 16 NY2d 619 cert. den. 382 US 905; Appeal of Malone, supra). Accordingly, a board’s decision to reorganize its schools will not be overturned unless it is arbitrary, capricious or contrary to sound educational policy (Appeal of Malone, supra; Appeal of Burnett, et al., 33 Ed Dept Rep 607, Decision No. 13,164).

Education Law "402-a, entitled, "Procedures for closing a school building", "authorize[s] and recommend[s]" that school boards establish an "advisory committee on school building utilization to investigate the educational impact" of a proposed school closing at least six months in advance of such action, and requires the committee to prepare a written educational impact statement. Subdivision 2 lists a variety of factors that the committee should consider in preparing its educational impact statement, and includes "[p]ossible use of such building for other education programs or administrative services" and "…the potential disposability of the closed school" (Education Law "402-a[2][a] and [b]).

I recently addressed the applicability of Education Law "402-a to a district decision to discontinue the use of an elementary school building for elementary instruction. In Appeal of Malone, supra, petitioners contended that the district was obligated to follow Education Law "402-a before implementing a reorganization plan that combined the student populations of two elementary schools and converted the vacated elementary building to the district’s administrative offices. In Malone, I concluded that Education Law "402-a is applicable only where a district contemplates discontinuing use of a school building for any purpose. I held that Education law "402-a was inapplicable in that case because the district contemplated using the vacated elementary building for the district’s administrative offices. Similarly, I find Education Law "402-a inapplicable here because respondent’s reorganization plan contemplated using the Lake Delta building for the district’s early education program. Moreover, even where a district contemplates permanently closing a building, establishment of an advisory committee pursuant to Education Law "402-a is discretionary (Appeal of Seligman, 31 Ed Dept Rep 131, Decision No. 12,594). Accordingly, I find that respondent was not obligated to follow the procedures outlined in Education Law "402-a.

Nor do I find respondent’s decision to "close" Lake Delta to be arbitrary or capricious, or contrary to sound educational policy. The record reflects that respondent’s district experienced a decline in enrollment as a result of the realignment of Griffiss Air Force Base. The professional redistricting study commissioned by respondent concluded that respondent should close an elementary building and identified Lake Delta as the logical choice. Although the report recommended that respondent not implement any closure plans before the 1998-99 school year, respondent explains that it voted to "close" Lake Delta for the 1997-98 school year to reduce the district’s budget.

Petitioners bear the burden of clearly demonstrating that respondent board’s action was arbitrary, capricious, or contrary to sound educational policy (Appeal of Bennardo, 33 Ed Dept Rep 178, Decision No. 13,017). Moreover, although a board may seek advice from paid consultants, it is ultimately the board’s responsibility to make the decision to reorganize the district (Id.). While it may have been preferable for respondent to implement the reorganization plan under the timetable suggested by Dr. Silky, petitioners have failed to establish that respondent’s decision to expedite the closure of Lake Delta to reduce the district’s budget was arbitrary, capricious, or contrary to sound educational policy.

I have considered the parties’ remaining contentions and find them to be without merit.