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Decision No. 16,647

Appeal of JAMES RANSOM, CHRIS FLAHERTY, CHRISTOPHER COOK, HANNAH REED, JEFFREY REED, and NORTH SHORE RESIDENTS OF THE ALLIANCE OF CONCERNED TAXPAYERS, INC., from action of the Board of Education of the Central Square Central School District, Superintendent Joseph Menard, and former members of the Board of Education Joseph Post, Stephen Fleury, David Bertrand and Scott Duggleby, regarding a school closing.

Decision No. 16,647

(August 18, 2014)


Ferrara, Fiorenza, Larrison, Barrett & Rietz, P.C., attorneys for respondents, Heather M. Cole, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners challenge the decision of the Board of Education of the Central Square Central School District ("respondent board") to close an elementary school.  The appeal must be dismissed.

     On April 7, 2014, respondent board voted to close Cleveland Elementary School ("Cleveland school").  This appeal ensued. Petitioners’ request for interim relief was denied on June 3, 2014. 

Petitioners contend that respondents’ decision was arbitrary and capricious.  Petitioners request that I require respondents to enforce certain resolutions adopted in 2012 that provided for the closing of the District Office, repurposing of the Central Square Intermediate (“CSI”) school, conversion of the Millard Hawk Primary (“MHP”) school to serve grades kindergarten through five, and redistricting of the district’s elementary buildings except the Brewerton Elementary School.  Petitioners also request that I require respondent to follow Education Law §402-a if the closing of the Cleveland school is to continue.    

Respondents deny petitioners' allegations and contend that the appeal must be dismissed as untimely and for failure to state a claim upon which relief may be granted.

Petitioners have submitted a reply to respondents’ answer and to certain allegations in the affidavit of the 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 reply, 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.

Respondents’ memorandum of law raises, for the first time, the argument that petitioners lack standing to bring this appeal.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  However, I am not precluded from determining petitioners’ standing since standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 and must be established in the record, regardless of whether lack of standing is raised as an affirmative defense in respondents’ answer (Education Law §311[3]; Appeal of Kackmeister, 39 Ed Dept Rep 466, Decision No. 14,285). 

An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  There is nothing in the petition that establishes, or even alleges, how any of the named individual petitioners have suffered personal damage or injury as a result of respondents’ actions.  Although not alleged, even if for the sake of argument I accept that petitioners are taxpayers and residents of the district, petitioners’ status as such is insufficient in and of itself to confer standing to challenge a school closing because petitioners do not allege that respondents’ actions have resulted in personal injury to themselves, such as a reduction in their property values, as a result of the closing of the Cleveland school (see e.g. Appeal of Weedward, 36 Ed Dept Rep 445, Decision No. 13,773 cf. Appeal of LaGrange, 51 Ed Dept Rep, Decision No. 16,315).  Although petitioners allege that closing the Cleveland school discriminates against disadvantaged students in the district and that the movement of two “Life Skills” classrooms from the A.A. Cole Elementary school will be “traumatic to a fragile portion of our student body”, they do not allege that they are the parents of students attending the Cleveland school, A.A. Cole or any other school in the district, or that they are the parents of students enrolled in the Life Skills classrooms. 

Furthermore, while I take administrative notice that, according to the corporate records of the New York State Department of State, the “Alliance of Concerned Taxpayers Inc.” located in Cleveland, New York is incorporated as a not-for-profit corporation, I note that the “North Shore Residents of the Alliance of Concerned Taxpayers, Inc.” is not itself listed in the Department of State corporate records as being incorporated.  An unincorporated association lacks standing to maintain an appeal under Education Law §310 (Appeal of Torres, 46 Ed Dept Rep 301, Decision No. 15,515; Appeal of Russo, 46 id. 266, Decision No. 15,504).  Accordingly, I find that the North Shore Residents of the Alliance of Concerned Taxpayers, Inc., lacks standing to bring this appeal because it is an unincorporated association consisting of individuals who are both North Shore residents and members of the Alliance of Concerned Taxpayers, Inc.   Therefore, the appeal must be dismissed for lack of standing, both as to the individual petitioners and the Alliance of Concerned Taxpayers, Inc.

Respondents contend that the appeal must also be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The board minutes establish that, on April 7, 2014, respondent board voted “... that the Central Square School District hereby approves the building closure of a North Shore Elementary School, in which Cleveland Elementary School will be closed, effective July 1, 2014.”  I note that the July 1, 2014 date is the effective date of the Cleveland school’s closing and is not, as petitioners appear to contend, the effective date of respondent board’s resolution to close the school.  Accordingly, petitioners had until May 7, 2014, 30 days from respondent board’s April 7, 2014 decision, to commence this appeal by personal service of their petition and notice of petition on respondents.  Petitioners’ initial petition was verified on May 8, 2014, received by my Office of Counsel on May 12, 2014, and returned by letter dated May 16, 2014 for failure to include proof of service on respondents.  Petitioners subsequently completed service upon respondents on May 20, 2014. Petitioners allege it was necessary to delay service because the corrected minutes of the April 7, 2014 board meeting were not posted until May 7, 2014. Previous Commissioner’s decisions have not found such excuse to be persuasive (see Appeal of Cook, 33 Ed Dept Rep 311, Decision No. 13,059).   Moreover, the record indicates that the corrections made to the minutes did not change the outcome of the board’s vote to close the Cleveland school, and petitioners provide no explanation why the lack of corrected minutes precluded petitioners from filing the petition within 30 days (see Appeal of Phillips, 38 Ed Dept Rep 297, Dec. No. 14,038).  Petitioners could have filed their petition within the 30-day time limit and then at a later date applied to file and serve a copy of the corrected minutes pursuant to §276.5 of the Commissioner’s Regulations (cf. Appeal of Cook, 33 Ed Dept Rep
311,Decision No. 13,059).[1]  Therefore, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Petitioners contend that respondents failed to follow Education Law §402-a in closing the Cleveland School.  Specifically, petitioners allege that the members of the Community Focus Group established by respondent were chosen in line with the procedures of Education Law §402-a, but respondents failed to require the Focus Group to prepare an educational impact statement or otherwise adhere to the requirements in the statute.  However, it must be noted that 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 Hockswender et al., 52 Ed Dept Rep, Decision No. 16,400; Appeal of Patashnick, 39 id. 236, Decision No. 14,225; Appeal of Seligman, et al., 31 id. 131, Decision No. 12,594). Although the record indicates that respondents established a “Community Focus Group”, respondents deny that the Focus Group was a committee for purposes of §402-a, and the minutes for the February 10, 2014 board meeting, at which the Focus Group was established, make no reference to Education Law §402-a but instead state that respondent board approved “... the volunteers as ad hoc members of a Community Focus Group to meet with a guest outsider on Saturday February 15, 2014, to provide feedback about the program implementation/facility use study.  Their work is only for that date.  This will be a public meeting, but since the Focus Group is appointed as an ad hoc set of individuals for a specific purpose, participation by those not appointed as members of the Focus Group are not part of the process for the Focus Group meeting.”  Accordingly, since the record fails to establish that the Community Focus Group was an advisory committee under §402-a, there is no requirement that respondents follow the provisions in Education Law §402-a, including preparation of an educational impact statement.

  Petitioners further contend that respondent board was bound by several prior board resolutions, as follows:

(1) a resolution adopted on February 15, 2012 “... that each community will maintain an existing elementary school in that community”;

(2) two resolutions adopted on March 5, 2012 for purposes of notifying the superintendent that:

(i) “... the current district office building be closed by September 1, 2012 for use by district employees for administrative and food services...” and

(ii) “... in redistricting, no elementary building be closed, however, that CSI be repurposed by September 1, 2012 for use by administrative services, food services, storage purposes, and other district needs, including any ancillary educational programs that would continue to allow state funding for building’s use as well as future needs based on community changes”; and

(3) a resolution adopted on March 19, 2012 “... that the modified version of Option 3 be approved whereby Central Square Intermediate will be closed to produce an annual and recurring cost savings for the Central Square District and the budget and to accommodate the students that were attending CSI, Millard Hawk will be converted to a K-5 elementary ... with the remainder of students shifted north to the other three schools.  Basically, Hastings-Mallory, eastward to Cole, and some at Cole that will now be moved over to Cleveland to create the most equitable and practical conditions possible for these four elementary schools ... to keep the enrollment lines for the students at Brewerton Elementary as they are currently but to immediately address the inequitable student-teacher ratio by adding on an extra teacher or two, whatever the administration deems reasonable within the guidelines that we’ve been following for everything else.  And that ... none of this precludes no [sic] redistricting in the future to accommodate the growth at Brewerton or growth in any other area.  That there is still ... a percentage of rooms left in each building that we can work around for other educational programs.” 

Petitioners contend that respondent superintendent was under a legal directive from respondent board to implement the closings and redistricting set forth in the above resolutions and request that I order respondents to enforce the resolutions to close the District Office, repurpose CSI, convert MHP to serve grades kindergarten through five, and redistrict all of the district’s elementary buildings except the Brewerton Elementary School.  However, I note that these resolutions were made more than two years before respondent board’s April 7, 2014 resolution to close the Cleveland school and, on the record before me, appear to have been superseded and effectively nullified by respondent board’s subsequent resolution.

In any event, I decline to direct respondent board and superintendent to implement the 2012 resolutions which have now been effectively nullified.  I note that, under longstanding common law, courts have applied the principle that a contract whose duration exceeds the one-year term of each board of education violates the public policy principle that one board may not bind a successor board in areas relating to governmental matters unless a longer term is expressly provided for in statute (see Morin v. Foster, 45 NY2d 287, 293 [1978]; Matter of Lake v. Binghamton Housing Authority, 130 AD2d 913 [3d Dept 1987], and the cases cited in these opinions). However, the courts have also recognized that, when there is adequate provision in a contract for a successor board to terminate a multi-year contract at will, the contracting board will not be illegally binding the successor board and the multi-year contract is not void as against public policy (Matter of Ramapo Carting Corp v. Reisman, 192 AD2d 922, 923 [3d Dept 1993]). The principle articulated in Ramapo was applied to a school district contract in Harrison Central School District Nyquist, 59 AD2D 434, and in Appeal of Citizens for Responsible Fiscal and Educational Policy, et al., 40 Ed Dept Rep 315, Decision No. 14,489.  Although the instant appeal involves board resolutions regarding school district reorganization and school closings rather than contracts, I find that the rationale is similarly applicable.  To hold that, as petitioners urge, a school board may not nullify or rescind the actions of a prior board by subsequent duly-adopted resolutions, would likewise violate this public policy principle.  To hold, as petitioners urge, that respondent board is bound by the previous resolutions adopted in 2012 would likewise violate this public policy principle, and I therefore decline to do so.

     Petitioners allege that moving the students from the closed Cleveland school to the A.A. Cole school will result in A.A. Cole functioning at 105% or more of its capacity.  However, respondents deny this and state that petitioners’ percentage is based on the estimates of respondents’ consultant, who advised the district of his preference to utilize conservative pupil-per-classroom estimates when preparing school closure and consolidation scenarios.  Respondents state that State Education Department guidelines and regulations allow for student class sizes larger than what is referenced in the consultant’s report and that when students from the Cleveland school are transferred to the A.A. Cole school, it will be functioning within the guidelines and limitations established by the State Education Department.  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).  Upon the record before me, I find that petitioners have failed to establish that the A.A. Cole school will operate at overcapacity. 

     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), (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. Of Union Free School Dist. No. 1, Town of Mamaroneck, 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).  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).

     According to the affidavit of the board president, for more than two years, the district has been evaluating its options with respect to the continued provision of a pre-kindergarten through grade twelve educational program, including the relative merits of redistricting and the closure of certain buildings.  In November 2011, the district commissioned a study by an architectural firm to review the capacity and room usage of the district’s elementary schools, which concluded that the district was utilizing its elementary schools at 66% capacity.  In early 2012, a study on the possible consolidation of the district’s elementary schools was prepared which reviewed elementary school enrollment history from 2002-2011, enrollment projections from 2012-2020, appraisal values of buildings being considered for consolidation, pupil capacity, cost savings and the financial and logistical impact on transportation, in the context of five consolidation options as follows: (1) combining CSI and MHP; (2) closing the A.A. Cole Elementary School; (3) closing the Cleveland Elementary School; (4) closing the Hastings-Mallory Elementary School; and (5) combining CSI and MHP (with no movement of students to the Cleveland school).  From February through April 2012, respondent board engaged in discussions including open forums, a workshop and presentations of redistricting scenarios, and also adopted and rescinded several motions concerning redistricting and building closure.  In May 2012, respondent board authorized the hiring of a consultant to complete a demographic study to aid the board and district in future planning.  The demographic study was discussed at board meetings in August and September 2012.  In September 2013, respondent board retained the services of a consultant to help the district review and evaluate its options with respect to the future organization of the district’s K-12 educational programs.  In October 2013, respondent board and respondent superintendent, assisted by the consultant, participated in a workshop to study the district’s options to organize the its pre-kindergarten – grade 12 educational program, and reviewed preliminary baseline enrollment projections prepared by the consultant, a pupil capacity analysis of each school building of the district, an enrollment projection/demographic study, and a pre-kindergarten through grade twelve program delivery study.  The consultant’s report contained six potential scenarios for restructuring the district’s instructional program.  One of the options was for the district to maintain the status quo; the remaining options all included the closure of either A.A. Cole or the Cleveland school.  In February 2014, respondent board established a Community Focus Group to review and provide feedback on the scenarios proposed by the consultant, and reviewed the results of the Focus Group’s analysis.    

    The record indicates that respondents’ determination to close the Cleveland school was based on the following: the Cleveland school is functioning at only 53.8% capacity versus 66% capacity district-wide; the Cleveland school has the smallest enrollment among the district’s elementary schools; the A.A. Cole Elementary School is a larger building and is better equipped to handle a larger number of students; debt service considerations and energy costs suggested that A.A. Cole was a better building to maintain and service into the future; the Cleveland school is located on the outer jurisdictional limits of the district while the A.A. Cole school is more centrally located; district-wide redistricting would have potentially transferred 563 students to several schools and closing the Cleveland school only affects approximately 177 students and involves only the A.A. Cole Elementary School; and in closing the Cleveland school, attendance zones will remain the same, thereby minimizing disruption of day-care options for parents. 

Although I understand that school closings are difficult for any community, a board of education is charged with making those difficult decisions.  Petitioners' mere disagreement with respondents’ findings and decision do not provide a basis to overturn respondents’ decision.  On the record before me, I find that respondents’ decision was not irrational, arbitrary, capricious or contrary to sound educational policy.

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





[1] The Cook decision stated that the remedy in such situation was for petitioner to commence the appeal within the 30-day time period and then amend the petition when the information became available.  However, since there is no provision in the Commissioner’s regulations authorizing an amended petition, the appropriate remedy is to apply to submit the information under §276.5, pursuant to which the Commissioner may permit the service and filing of affidavits, exhibits and other supporting papers upon good cause shown.  To the extent Appeal of Cook (33 Ed Dept Rep 311, Decision No. 13,059) or any other previous decisions by the Commissioner in appeals filed pursuant to Education Law §310 are inconsistent with the regulation, such decisions are expressly overruled.