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Decision No. 14,478

Appeal of STEPHANIE CIESLIK, JOANNE POHLMAN, KAREN WOODMANSEE, LORRIE GREENE, SARA MENIKOFF, STUART NAPEAR, CATHY RODE, ERNIE KIGHT and BARBARA LANG, from action of the Board of Education of the Freeport Union Free School District regarding shared decision-making.

Decision No. 14,478

(October 19, 2000)

Ingerman Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel

MILLS, Commissioner.--Petitioners, members of the Freeport High School Site-Based Team ("SBT"), seek an order directing the Board of Education of the Freeport Union Free School District ("respondent") to comply with 8 NYCRR "100.11, respondent's District Policy #2265 and the Plan-to-Plan Committee Report adopted by respondent on August 25, 1993, regarding shared decision-making, and to ensure that the SBT is afforded meaningful participation in decisions which are required to be made pursuant to the shared decision-making process. The appeal must be sustained in part.

Section 100.11 of the Regulations of the Commissioner of Education requires school districts to 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 decision-making. Respondent authorized a committee to develop a plan in its District Policy #2265 entitled "Shared-Decision-Making and School-Based Planning," and respondent's current shared decision-making plan is outlined in the Plan-to-Plan Committee Report ("Plan-to-Plan") dated August 25, 1993.

On March 1, 2000, the SBT sent a letter to respondent’s superintendent, asking that she direct the interim principal of the Freeport High School ("FHS") to comply with the mandates of "100.11 of the Commissioner's Regulations and the Plan-to-Plan to permit the SBT to have meaningful participation in the consideration of certain revisions of the high school grading policy and the scheduling policy for students in grades 9-12. The letter attached a January 19, 2000 letter from the SBT to the interim principal, asking for an immediate response to the SBT on recommended changes to the revised grading policy, which had allegedly received no response. The March 1, 2000 letter further attached a January 31, 2000 revised memorandum from a district consultant, which proposed student scheduling changes for grades 9-12. The March 1 letter alleged that the SBT had not been involved in discussions of this proposal in any way, although the proposal would likely impact all students at FHS, and the SBT was therefore denied "meaningful participation" in the decision process regarding the proposed schedule changes.

In addition to these two specific matters, the March 1 letter generally complained that the SBT was not being afforded meaningful participation in issues that were subject to shared decision-making in the Plan-to-Plan. The SBT asked for a response from the superintendent by March 17, 2000.

By letter dated April 7, 2000, respondent's president replied to the SBT's March 1 letter, indicating that he had spoken with the superintendent regarding the issue of shared decision-making in the Freeport schools. The board president advised the SBT that, in order to streamline and refine the process with an aim to eliminating conflicts such as those outlined in the March 1 letter, respondent had decided to re-examine the district’s shared decision- making process.

The SBT responded by letter dated April 20, 2000. The SBT noted that, to date, it had not received a response from the superintendent to its March 1 letter, and that the board president's April 5 letter had not addressed the specific issues raised in the SBT's letter. The SBT stated that it did not interpret the April 5 letter as indicating any intent by respondent to direct the superintendent to comply with the mandates of the Plan-to-Plan, only to streamline and refine the district’s shared decision-making process. The SBT asserted that respondent was prohibited from changing the Plan-to-Plan at the current time by "100.11(f). The SBT demanded a statement from respondent or the superintendent by May 3, 2000 outlining how the district planned to comply with the present Plan-to-Plan, or it would appeal the district's actions to the Commissioner. The record before me does not reflect any specific reply to the April 20 letter. This appeal ensued.

Petitioners contend that respondent and its superintendent have failed to abide by the shared decision- making process currently in effect in the district. They seek an order directing respondent to abide by "100.11 of the Commissioner's regulations, respondent's District Policy #2265 and the Plan-to-Plan. Respondent denies the claims raised by petitioners, and specifically asserts that it is authorized to amend the Plan-to-Plan in connection with the pending biennial review required by 8 NYCRR "100.11(f). Respondent further contends that the proposed schedule revisions for FHS implicate "terms and conditions of employment," which are not subject to mandatory shared decision-making. Respondent also asserts two procedural objections. Respondent contends that the petition is facially deficient insofar as it fails to state specific facts and claims, and that the appeal is untimely insofar as it claims that respondent failed to respond to the SBT's requests made in the January 19 and March 1, 2000 letters. Respondent additionally objects to portions of petitioners' reply affidavits, contending that they include belated assertions or exhibits that should have been part of the petition.

I will initially address respondent's procedural objections. Respondent contends that the petition should be dismissed for failure to contain a clear and concise statement of petitioners' claim and entitlement to relief. Section 275.10 of the Regulations of the Commissioner of Education provides that a petition shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and a demand for the relief to which the petitioner is entitled. Such statement shall be sufficiently clear to advise respondent of the nature of petitioner's claim and of the specific act or acts of which petitioner complains. Although somewhat vague and conclusory, I nevertheless find the petition sufficiently clear to permit respondent to ascertain the nature of the claims and demand for relief and to formulate a complete response. Where, as here, petitioner is not represented by counsel, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to respondent (Appeal of Miller, 39 Ed Dept Rep 348, Decision No. 14,256). Respondent does not plead any prejudice resulting from the petition nor do I find any such prejudice. Accordingly, I decline to dismiss the petition as violative of "275.10 of the Commissioner's Regulations.

I also find that the petition is not time-barred insofar as it challenges the lack of SBT participation in proposed schedule revisions or the amendment of the district's shared decision-making plan in connection with the biennial review required under 8 NYCRR "100.11(f). An appeal to the Commissioner of Education must be instituted 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). Petitioners allege an ongoing failure by respondent and its superintendent to abide by the shared decision-making provisions of "100.11 and the district's own policy and shared decision-making plan, and there is no evidence in the record before me that respondent has made final decisions with respect to the biennial review or proposed schedule revisions. Petitioners, therefore, allege a continuing wrong (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), and I decline to dismiss these claims as untimely.

I have reviewed the reply affidavits submitted by petitioners, and find that they respond directly to factual assertions submitted by respondent in its answering affidavits. Respondent submitted an affidavit by its interim principal, which indicated that she had sought the SBT's input about the revised Grading Policy during the period of September-October 1999. Petitioners' reply affidavits directly contest the statements in this affidavit, and assert that the SBT was never asked for its input or allowed to participate in consideration of the revised Grading Policy. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). It is not meant to buttress allegations in the petition or add assertions or exhibits that should have been in the petition (Appeal of Sadue-Sokolow, supra; Appeal of Krantz, 38 Ed Dept Rep 485, Decision No. 14,077). Petitioners' reply affidavits do not add new claims or allegations not already included in the petition, and merely contest specific statements in the answer and supporting affidavits. I will consider the reply affidavits in my decision.

I discern three separate claims in the petition. The first claim is that respondent failed to comply with or even respond to a request by the SBT in its January 19, 2000 letter to institute certain changes to respondent's revised Grading Policy. A new Grading Policy for Freeport High School was developed over the summer of 1999 by the Summer Grading Policy Committee, but petitioners contend that the SBT was not permitted any meaningful participation in the development of the policy. The interim principal submits an affidavit stating that she requested the SBT's input in the fall of 1999 with respect to the proposed Grading Policy developed over the preceding summer, telling the SBT that the policy was "not set in stone and could be changed." She states that she received no response from the SBT until the SBT's January 19, 2000 letter. However, petitioners specifically dispute that the interim principal requested the SBT's input, and aver that all of the interim principal's discussions regarding the Grading Policy had been with groups and individuals not comprising the SBT.

I cannot determine from the record before me when, or in fact whether, the new Grading Policy was formally adopted for use at FHS. The record contains a document denoted as "General Circular #1," entitled "Grading Policy, Freeport High School," printed on the letterhead of the interim principal. However, this document is not dated or initialed, and the record does not state whether this document represents a proposed policy or a final policy adopted by respondent.

The Plan-to-Plan contains six clusters of issues, each cluster containing a group of items that are related to a general theme such as "Home/School Community Partnerships" or "Instructional Effectiveness/Program Development." Clusters One through Four represent issues that can be addressed cooperatively at the building level by the shared decision-making team. Cluster Five represents issues that should be addressed on a district-wide basis, and Cluster Six represents issues determined not to be included in the shared decision-making process. Cluster Two, entitled "Staff Development," includes as an item "Grading Policy - Establish a practice of evaluating and implementing change in grading policy" (Plan-to-Plan at p. 4). "Grading Policy" is also included as an item under Cluster Four, entitled "Clarifying Roles, Procedures" (Plan-to-Plan at p. 13). I also note that an identical description for "Grading Policy" is included under Cluster Five, for district-wide issues (Plan-to-Plan at pp. 14, 15). The Plan-to-Plan provides no explanation for this apparent inconsistency.

Although it appears that the revision of grading policy is a matter that the parties intended to submit to shared decision-making, I nevertheless cannot determine conclusively from the record before me whether respondent improperly failed to afford meaningful participation by the SBT in consideration of the grading policy. Respondent asserts that the SBT's input was requested in September, October and November 1999, although respondent does not indicate whether the policy developed during summer 1999 was already adopted and in effect or whether the revisions were still just a proposal. Also, although petitioners strongly contend that the interim principal never asked for SBT input into any matters, including the grading policy, I note that the SBT's January 19, 2000 letter to the interim principal commences by stating that "[y]ou gave us a directive to work through the Site Based Team to make changes in the Grading Policy developed over the summer by the Summer Grading Policy Committee. We have taken your advice to heart..." No further information is provided as to how such directive was given, what "advice" was provided to the SBT, or any other explanation for the statement made in the January 19 letter.

In an appeal to the Commissioner, petitioner bears the burden of establishing all the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Alexander, 39 Ed Dept Rep 265, Decision No. 14,232; Appeal of Trombley, 39 id. 115, Decision No. 14,189) and demonstrating a clear legal right to the relief requested (Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120). On the basis of the inconsistency of petitioners' own proof, and in view of respondent's affirmative statements that SBT input was requested, I find that petitioners have not sustained this burden and I must dismiss this claim.

The second claim is that respondent is violating "100.11 in amending the Plan-to-Plan Committee Report adopted in August 1993. A district's shared decision- making plan must be reviewed biennially by the board of education (8 NYCRR 100.11[f]). Any amendment or recertification of the plan must be developed and adopted in the same manner as the initial plan, and filed with the Commissioner of Education for approval (id.). Respondent's first biennial review was due on February 1, 2000. By letter dated December 1, 1999, respondent requested an extension of time, indicating that it had become clear that the original shared decision-making process was "no longer appropriate" and the district was in the process of formulating a new plan. An extension was granted until July 31, 2000. Respondent requested a second extension on May 4, 2000, which was granted until October 1, 2000.

The precise nature of petitioners' complaint regarding respondent’s amendment of the shared decision-making plan is unclear. To the extent that petitioners contend that the Plan-to-Plan currently in effect in the district cannot be amended, they are incorrect. Section 100.11(f) of the Commissioner's Regulations specifically provides for amendment and revision of the plan at the time of the required biennial review.

To the extent, however, that petitioners' complaint is that a new plan has been adopted without the SBT's meaningful participation, I must dismiss such contention as premature. The record does not indicate whether the biennial review has in fact been completed, whether a revised shared decision-making plan has been formulated, what procedures have been used to formulate the revised plan, or whether such revised plan has been formally adopted. The only evidence in the record regarding the biennial review consists of the letters requesting and granting extensions of time to complete the biennial review.

Until the process of formulating and adopting a revised plan has been completed, or, at a minimum, the record contains evidence that a constituent required by ""100.11(b) and (d) to be included in the revision process has been excluded from meaningful participation in such activities, I cannot determine whether there has been any violation of "100.11(f) in the development and/or adoption of a revised shared decision-making plan. The Commissioner does not issue advisory opinions in appeals brought pursuant to Education Law "310 (Appeal of Instone-Noonan, 39 Ed Dept Rep 413, Decision No. 14,275; Appeal of Weiss, 39 id. 69, Decision No. 14,176; Appeal of Lambert, 37 id. 599, Decision No. 13,937). This claim must therefore be dismissed as premature.

The third claim is that the SBT was not permitted "meaningful participation" prior to the submission of a proposed revised schedule for FHS by a consultant hired by the district. The precise nature of petitioners' objection to the consultant's proposal is unclear. The record indicates only that a proposal was submitted by the district's consultant to revise the schedules for students in grades 9-12 at FHS. There is no evidence that this proposal has ever been considered or discussed by respondent, or that respondent has actually adopted the proposed schedule revisions as district policy. I have reviewed the Plan-To-Plan, and I do not find that the underlying decision to hire a consultant and receive his report is a decision that is subject to mandatory shared decision-making. A consultant's report is not the result of consensus, it is the result of an expert's review of facts and application of experience and expertise to propose a solution.

It appears, however, that actual consideration by respondent of the consultant's proposed scheduling revisions is subject to mandatory shared decision-making pursuant to the provisions of the Plan-to-Plan, which specifically includes "Scheduling - aid and facilitate process" in Cluster Four (entitled "Clarifying Roles, Procedures") of topics that are subject to shared decision- making (Plan-to-Plan at pp. 11, 13). Respondent contends that scheduling matters are actually issues implicating "terms and conditions of employment," and are listed in Cluster Six of the Plan-to-Plan as issues specifically excluded from shared decision-making. However, although the generalized description of Cluster Six on page 3 of the Plan-to-Plan includes "terms and conditions of employment" as an example of an issue that is not open for shared decision-making, the Plan-to-Plan specifically states that the generalized examples found in the Cluster descriptions are intended only as "general illustrations that attempt to create a 'tone' of the cluster," and that Appendix I entitled "Compiled Cluster Groups" contains the specific Cluster items and their definitions (Plan-to-Plan at p. 1).

Cluster Six, as outlined authoritatively in Appendix I (Plan-to-Plan at p. 16), does not include "terms and conditions of employment" as an item excluded from shared decision-making. Therefore, inasmuch as the authoritative definitions in Appendix I include "Scheduling" in Cluster Four as a subject of mandatory shared decision-making, and do not include "terms and conditions of employment" in Cluster Six as an exclusion to shared decision-making, I find that respondent should refer matters involving scheduling to the shared decision-making process as outlined in the Plan-to-Plan.

I am not persuaded by respondent's argument that, because the Plan-to-Plan states that Clusters One through Four represent issues that "may" be addressed cooperatively at the building level, the Plan-to-Plan therefore "in no way mandates that the various Cluster Groups be consulted on every issue," and that the Plan-to-Plan merely provides a "suggestion for a framework in which to work cooperatively." Section 100.11(c) requires that a district's shared decision-making plan specify the educational issues that will be subject to cooperative planning and shared decision-making at the building level ("100.11[c][1]) and the manner and extent of the expected involvement of all parties ("100.11[c][2]). There is nothing in the Plan-to-Plan which expressly indicates that not all issues included within the Cluster areas will in fact be referred for shared decision-making, nor does the Plan-to-Plan establish any criteria, procedures or guidance by which respondent would determine what issues would or would not be referred.

A plan which purportedly establishes nothing more than a "framework," and which leaves unfettered and unguided discretion in the hands of the board of education as to what particular matters within cited categories will be subject to shared decision-making, fails to satisfy the requirement in "100.11(c)(1) that the plan specify the educational issues that will be subject to shared decision- making. If respondent desires some differentiation between particular matters in the listed topics that need not be referred to shared decision-making, then such differentiation should be specified in the Plan-to-Plan so that the document satisfies the regulatory requirement to specify the issues that actually will be submitted for shared decision-making.

However, any complaint that the SBT had been blocked from meaningful participation in any consideration by respondent of the schedule revisions is premature, as the record indicates that respondent is still in the process of consulting with various teachers and others to obtain input as to the proposed schedule changes. There is nothing in the record to indicate that respondent has made a final determination with respect to proposed revisions to student schedules in violation of "100.11 or the Plan-to-Plan. Therefore, this claim is also dismissed as premature.

Although I am constrained to dismiss certain aspects of this appeal as premature, I am concerned about the apparent breakdown in the shared decision-making process in respondent's district. Respondent has recognized, in its letters to the Department seeking extensions of time for its biennial review and in its responses in this appeal, that the Plan-to-Plan currently in effect is "no longer appropriate to the district's situation" and that the SBT's letters have highlighted conflicts in the process. Petitioners' dissatisfaction with the process indicates that those involved in the shared decision-making process do not feel that they are being afforded meaningful participation by respondent.

I urge the parties to work together to formulate a reasonable and workable shared decision-making plan during the biennial review and to resolve any inconsistencies or conflicts within the existing plan. Necessary revisions should be made to improve the district's procedures for obtaining meaningful participation by all mandated groups in accordance with its plan and "100.11. I also remind respondent that only a properly comprised committee may issue guidelines and/or decisions to amend the plan (Appeal of Trombley, supra; Appeal of Sadue-Sokolow, supra), so respondent should ensure proper participation by all required parties in its consideration of a revised Plan-to-Plan.


IT IS ORDERED that respondent cease immediately its practice of withholding issues concerning the revision of district policies concerning student schedules from the shared decision-making process as outlined in the Plan-to-Plan.