Appeal of SHANNON HOCKSWENDER, on behalf of her children OWEN and OLIVIA, from action of the Board of Education of the Warwick Valley Central School District regarding a school closing.

Appeal of LISA CUNNINGHAM, on behalf of her children PATRICK JR., TESSA and JAIME, from action of the Board of Education of the Warwick Valley Central School District regarding a school closing.

Appeal of CHRISTINA PAHUCKI, on behalf of her children SAMANTHA, BENJAMIN and CORA, from action of the Board of Education of the Warwick Valley Central School District regarding a school closing.

Appeal of SUSANNE DEMARCO, on behalf of her son ETHAN TUOMALA, from action of the Board of Education of the Warwick Valley Central School District regarding a school closing.

Appeal of TRACEY PIETRZAK, on behalf of her daughter MORGAN NICOLE, from action of the Board of Education of the Warwick Valley Central School District regarding a school closing.

Appeal of SONDRA J. HALL, on behalf of her son PIERSON, from action of the Board of Education of the Warwick Valley Central School District regarding a school closing.

Appeal of MICHAEL L. HENNESSY, on behalf of his daughters HANNAH R. and GRACE M., from action of the Board of Education of the Warwick Valley Central School District regarding a school closing.

Decision No. 16,400

(August 30, 2012)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

KING, JR., Commissioner--In seven separate appeals, petitioners challenge the decision of the Board of Education of the Warwick Valley Central School District ("respondent") to close an elementary school. Petitioners Cunningham, DeMarco, Pahucki, Pietrzak, Hall and Hennessey also seek the removal of board members. Because the appeals raise similar claims and issues of law, they are consolidated for decision. The appeals must be dismissed and the applications for removal must be denied.

On February 14, 2011, respondent voted to close its Pine Island Elementary School (“Pine Island”). These appeals ensued. Petitioners’ requests for interim relief were denied on April 4, 2011.  Petitioner Hall did not submit a request for interim relief.

Petitioners contend that respondent’s decision was contrary to sound educational policy, and arbitrary, capricious and without a reasonable basis, in that respondent's decision was not based upon research, study, evidence or fact.  Petitioners specifically allege that respondent ignored its own data and third party research; failed to perform any analysis of actual cost comparisons among its four elementary schools; failed to consider the educational impact upon their children, other students and the community; limited community input in the school closing process; failed to respond to the community's requests for information on alternate school building configurations and budget cuts that would prevent the closing of a school; and failed to create a transition plan for petitioners’ children and other Pine Island students.  Petitioners also allege that respondent failed to establish an advisory committee and hold a public hearing pursuant to Education Law §402-a.

Respondent denies petitioners' allegations and contends that the appeals must be dismissed for failure to state a claim upon which relief may be granted, and for failure to state a clear legal right to the relief requested. In addition, respondent contends that the Hockswender petition is defective, and that the Cunningham, DeMarco, Pahucki, Pietrzak, Hall and Hennessey petitions, to the extent they seek removal of board members, must be dismissed for defective notice and service.

I will first address the procedural issues.  Respondent alleges that the Hockswender petition is defective in that it is not signed and properly verified. Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  Upon reviewing the record, I find that petitioner Hockswender's petition, as filed with my Office of Counsel, is signed and properly verified in accordance with §275.5 of the Commissioner's regulations. Therefore, I decline to dismiss petitioner Hockswender's petition on such grounds.

Respondent contends that the Cunningham, DeMarco, Pahucki, Pietrzak, Hall and Hennessey petitions, to the extent they seek removal of board members, must be dismissed for defective notice and service.  Section 277.1(b) of the Commissioner’s regulations requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office pursuant to Education Law §306.  In this case, petitioners failed to comply with §277.1(b), but instead used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Hertel, 49 Ed Dept Rep 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832; Appeal of Catalan, 47 id. 176, Decision No. 15,660).  Therefore, the applications for removal must be dismissed for defective notice.

Furthermore, the applications for removal must also be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioner DeMarco seeks the removal of all board members and petitioners Cunningham, Pahucki, Pietrzak and Hennessy seek the removal of unspecified board members who are "proven to have neglected their responsibilities."  Petitioners failed to name any board members in the caption and failed to personally serve any board members with a copy of the petition and notice of petition.  I also note that petitioner Pahucki in her reply seeks to withdraw her request that board members be removed.  Accordingly, the applications for removal must be denied (Appeal of Klock, 49 Ed Dept Rep 214, Decision No. 16,005).

Petitioners Pahucki and Hall have submitted replies to respondent's answer and to certain allegations in the affidavit of respondent's superintendent, but which also include additional allegations and exhibits not responsive to such documents.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the replies, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

I also note that, to the extent petitioner Pahucki's reply raises alleged violations of the Open Meetings Law, Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).

Petitioner Hockswender has requested consideration of her additional affidavit and proposed exhibits. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). While much of petitioner Hockswender’s affidavit and exhibits appear to address the affidavit of the superintendent submitted with respondent's answer, I note that petitioner's affidavit also seeks to file a "complaint" against the superintendent for allegedly ignoring "the New York State recommended code of ethics for superintendents," “grave communication disorders with the public" and for misleading the community in regards to the closing of Pine Island.  Accordingly, pursuant to the authority granted by §276.5 of the Commissioner’s regulations, while I have accepted petitioner Hockswender's additional affidavit and exhibits, I have not considered those portions that serve to buttress allegations in the petition and to add new claims involving the superintendent.

In addition, some of the petitioners have submitted several newspaper articles to support their appeals.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Parris, 51 Ed Dept Rep, Decision No. 16,261; Appeal of Wachala, 49 id. 31, Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision No. 15,826). Therefore, I have not considered such articles for the veracity of their content.

Turning to the merits, petitioners contend that respondent should have followed Education Law §402-a before deciding to close Pine Island, by establishing an advisory committee to consider the factors listed the statute, and by holding a public hearing. Education Law §402-a is discretionary and identifies factors to be considered, and actions to be taken, by a board of education only if the board chooses to establish an "advisory committee on school building utilization to investigate the educational impact of such a closing" (Education Law §402-a[1]; Appeal of Patashnick, 39 Ed Dept Rep 236, Decision No. 14,225; Appeal of Seligman, et al., 31 id. 131, Decision No. 12,594).  Accordingly, since the record indicates that respondent chose not to establish an advisory committee, there is no requirement that respondent follow the provisions in Education Law §402-a, including holding a public hearing to evaluate the impact of the proposed closing on the district.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

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 Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Patashnick, 39 id. 236, Decision No. 14,225; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194).  Pursuant to Education Law §§1709(3) and (33) and 1804(1), 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. In such cases, a board’s discretion is broad (Matter of Older, et al. v. Bd. of Educ., 27 NY2d 333; Appeal of Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194). 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 Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Patashnick, 39 id. 236, Decision No. 14,225; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194).

The record reflects that, prior to voting to close Pine Island, respondent studied costs, capacity, transportation and program and budgetary impacts. Respondent considered the enrollment trends and the ability of the district to accommodate students on a more cost effective basis at another facility. Respondent also considered the findings of a long-range planning study conducted by the Western Suffolk Board of Cooperative Educational Services Office of School Planning and Research, which included the following findings: (1) a projected decrease in enrollment during the 10-year projection period presented; (2) all six district facilities examined are operating below maximum capacity (within 62-84 percent of their capacity, with Pine Island operating at the lowest capacity; and (3) as district enrollment decreases, consideration should be given to facility operation, particularly at the elementary school level.  The study listed four options for respondent to consider, two of which included closing one elementary building.  Respondent determined that the closing of Pine Island would result in substantial cost savings without further cuts in educational programs. Petitioners' mere disagreement with respondent's findings and decision do not provide a basis to overturn respondent's decision.  Based on the record before me, therefore, I find that respondent’s decision was not arbitrary and capricious.

With respect to petitioners' contention that respondent limited community input in its decision to close Pine Island, I note that a board of education has the right to control the agenda at board meetings (Appeal of Martin, 32 Ed Dept Rep 381, Decision No. 12,861).  There is no statutory mandate that requires a board to permit public input at its meetings (Appeal of Martin, 32 Ed Dept Rep 381, Decision No. 12,861; Appeal of Wittneben, 31 id. 375, Decision No. 12,671; Matter of Thomas, 10 id. 108, Decision No. 8,223). Nevertheless, board members are representatives chosen by district residents to govern the affairs of a school district and as such have an obligation to keep the residents informed and to provide channels of communication through which residents may express their opinions (Matter of Thomas, 10 Ed Dept Rep 108, Decision No. 8,223).  Thus, boards of education should be encouraged to have residents participate in their meetings (Appeal of Wittneben, 31 Ed Dept Rep 375, Decision No. 12,671). The reason for public participation is to enable board members to understand the concerns of the residents they represent.

The record establishes that district residents, including petitioners Pahucki and Pietrzak, were provided opportunities to speak at the December 20, 2010 board of education work session for long-range planning and at the February 14, 2011 board meeting, before the board vote on closing the school.  In addition, it appears from board meeting minutes that respondent provides an opportunity at each board meeting for district residents to provide general comments, and that some residents made comments to the board regarding the possible closing of Pine Island at the December 14, 2010 and January 10, 2011 board meetings.  Respondent also contends, and petitioners do not dispute, that district residents had access to the board via the district's website.  Upon the record before me, I do not find that respondent failed to keep the residents informed or to provide channels of communication through which residents may express their opinion (Matter of Thomas, 10 Ed Dept Rep 108, Decision No. 8,223).  Petitioners' disagreement with the manner and extent to which respondent provided opportunities for public input does not provide a basis to overturn respondent's decision.

I have reviewed petitioners' remaining contentions and find them to be without merit.

THE APPEALS ARE DISMISSED AND THE APPLICATIONS ARE DENIED.

END OF FILE.