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Decision No. 16,669

* Subsequent History: Matter of Thomas v. King; Supreme Court, Albany County; Decision and Order dismissed petition to review; dated August 31, 2015. *

Appeal of MICHAEL P. THOMAS from action of the New York City Department of Education and J. David Jimenez, principal, regarding shared decision-making.

Decision No. 16,669

(September 23, 2014)

Zachary Carter, Corporation Counsel, attorney for respondent,   David A. Rosinus, Jr., Esq., of counsel

 KING, JR., Commissioner.--Petitioner challenges actions of the New York City Department of Education (“DOE”) and J. David Jimenez (“Jimenez” or “Principal Jimenez”) principal of Manhattan Center for Science and Mathematics, (collectively “respondents”) regarding the development of a school-based budget.  The appeal must be dismissed.

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.  Further, Education Law §2590-h requires that the DOE Chancellor “[p]romote the involvement and appropriate input of all members of the school community” by, among other things, “taking all necessary steps to ensure that no later than October first, nineteen hundred ninety-nine, the  city district and the community districts are in full compliance, and remain in compliance thereafter, with state and federal law and regulations concerning school-based management and shared decision-making, including section 100.11 of the commissioner’s regulations…” (Education Law §2590-h [15][b]). 

Chancellor’s Regulation A-655 (“A-655”) implements the requirements of Commissioner’s regulation §100.11 and sets forth DOE’s central plan for school-based planning and shared decision-making.  A-655 requires the establishment of school leadership teams (“SLTs”) in each New York City public school.  An SLT consists of the school principal, the United Federation of Teachers Chapter Leader, the Parent Association/Parent-Teacher Association president or co-president, or their designees, and up to 14 other parents, staff, students and community members.  SLTs are responsible for developing an annual school comprehensive educational plan (“CEP”) that is aligned with the school-based budget for the ensuing school year (A-655[II][A][1]).  

Petitioner is a tenured teacher of mathematics at the Manhattan Center for Sciences and Math (the “school”).  In September 2010, petitioner was elected for a second one-year term to the school’s SLT as a representative of the United Federation of Teachers (“UFT”).  On or about March 2011, DOE provided training regarding the duties and responsibilities of the SLT.  Petitioner asserts that, in early June 2011, the SLT approved the CEP framework for the 2011-2012 school year, which consisted of a needs assessment of the school, overall goals and an action plan to achieve such goals.  Respondents describe the June 2011 CEP as a draft. 

In a June 27, 2011 email, Principal Jimenez informed the school’s staff that “we have suffered a huge cut. Just paying for salaries alone has left us with more than a 500K deficit.”  As a result of these budget cuts, Jimenez formed a budget committee, comprised of Jimenez, petitioner, assistant principals and six other teachers to assist over the summer in revising the 2011-2012 school–based budget in light of the cuts.  The committee held four meetings during the summer of 2011.  In several emails, petitioner requested that the SLT participate in the on-going budget discussions to ensure that it was aligned with the CEP.  Jimenez agreed that the SLT should be involved and indicated that the matter would be placed on the agenda of the SLT’s first meeting of the year, apparently in September.  Petitioner stated that he thought the SLT “should be included in budget discussions now to ensure that the budget is aligned with the CEP” (emphasis in original).  On August 15, 2011, the Assistant Principal of Special Education emailed a copy of the CEP to the budget committee members and told the budget committee members that they may invite “any staff members that served on the SLT this past school year to our next budget committee meeting, their input would be valuable.” The next day, petitioner emailed the budget committee members and thanked the assistant principal for distributing the CEP, but reminded him that in his opinion, “the current members of the SLT, including parents, should participate in the development of the budget to ensure that it is aligned with the CEP.”

In an August 17, 2011 email, Principal Jimenez stated that “SLT members are called to serve during the school year, not summers.  In fact, we are mandated to agree on a calendar of meeting dates and convene all of our meetings between September and the last day of school.”  Jimenez also pointed out that not all members of the SLT could participate over the summer, including student members of the SLT who had graduated and parent members of the SLT whose children had graduated.  Jimenez also noted that stipends paid to staff who participated on the SLT could not be amended.  Finally, Jimenez stated that he would formally update the SLT at its first meeting of the 2011-2012 school year “of any changes I’ve had to make during the summer because of budgetary constraints.”  This appeal ensued.

Petitioner alleges that Principal Jimenez did not consult with the SLT when developing the 2011-2012 school-based budget, as required by A-655.  Petitioner also alleges that the SLT did not ensure that the budget was aligned with the CEP and that the training provided to the SLT was inadequate.  Petitioner requests an order directing DOE to provide additional training to SLTs and to revise A-655 to ensure that the CEP and school-based budget are aligned by the SLT.  Petitioner also requests that I find Jimenez’s actions were inconsistent with A-655 and the Education Law.

Respondents argue that Principal Jimenez appropriately consulted with the SLT in developing the proposed 2011– 2012 school-based budget and that it aligned with the goals and plans in the draft CEP.  Respondents contend that Jimenez will continue to consult with the SLT so that it may finalize the CEP and review the revised budget to ensure it is aligned with the final CEP. 

In a supplemental affidavit submitted after the pleadings herein, Principal Jimenez avers that he subsequently presented the revised budget to the SLT on October 13, 2011 and November 6, 2011.  A third meeting was planned for November 29, 2011 at which the CEP would be finalized.  Respondents point out that, in accordance with A-655(II)(A)(6), when an SLT does not agree that a school-based budget is aligned with the CEP it may submit a written response to the superintendent after the principal submits the school-based budget for approval.  Respondents also assert that petitioner failed to establish that SLT training is inadequate.  Finally, respondents contend that A-655 already ensures that the SLT is involved in aligning the school-based budget with the CEP and, therefore, petitioner’s request for an order directing DOE to amend A-655 should be denied.  

I must first address several procedural issues.  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). 

In this case, respondents submit an additional affidavit regarding events that occurred after it filed a verified answer and to address portions of petitioner’s verified reply.  Specifically, petitioner’s reply addresses whether the SLT could have met during the summer of 2011.  The assertions in the reply respond to allegations in respondents’ answer and are directly related to petitioner’s claim that Jimenez failed to consult with the SLT during the summer to ensure that the school-based budget was aligned with the CEP.  Therefore, I have accepted and considered respondents’ additional affidavit.  Further, in response to respondents’ additional affidavit, petitioner also submits an affidavit.  I have reviewed and considered those portions of petitioner’s additional affidavit that pertain to the SLT’s ability to meet during the summer of 2011 and to the events that occurred subsequent to submission of the pleadings herein.  Neither party is prejudiced by my consideration of these additional affidavits.  

Petitioner also asserts that respondents’ memorandum of law does not consist of legal arguments and that “Point II” of the memorandum of law should not be considered because it addresses respondents’ argument that it was impossible for the SLT to meet during the summer of 2011 - which petitioner complains was raised for the first time in Jimenez’s additional affidavit.  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).  I have already determined that I will consider Jimenez’s additional affidavit.  Thus, I have considered “Point II” in respondents’ memorandum of law.  However, while I have considered respondents’ memorandum of law, I limited my review to its legal arguments.

The appeal must be dismissed as moot.  The Commissioner will only decide 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner challenges respondents’ actions relating to the development of the 2011–2012 school–based budget and its alignment with the 2011-2012 CEP.  As that school year has concluded, the appeal is moot.

Even if it were not moot, the appeal would be dismissed on the merits.  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).  In addition, it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

Petitioner claims that Principal Jimenez did not solicit input from the SLT when developing the school-based budget and that the SLT did not ensure that the school-based budget was aligned with the CEP. 

While I agree with petitioner that proposed school-based budget revisions must be made in alignment with the CEP, with input from the SLT, it is ultimately the Principal “who makes the final determination concerning the school-based budget” (A-655 [II][2] and see Appeal of Pollicino, 48 Ed Dept Rep 279, Decision No. 15,858).  According to the record, the SLT approved the 2011–2012 CEP framework in June 2011.  Respondents state that that same month, Jimenez referenced the CEP in developing a school–based budget for the 2011–2012 school year.  Petitioner does not submit any evidence to refute that assertion.  

Although the school–based budget required revision during the summer of 2011, in his supplemental affidavit Principal Jimenez states that he met with the SLT on October 13, 2011 and November 2, 2011 during which the revised school-based budget was discussed.  Petitioner admits in his supplemental affidavit that those meetings occurred, as well as a meeting on November 29, 2011 - where the SLT made revisions to the CEP - and one on December 6, 2011.  Petitioner submits no affidavits by other members of the SLT stating that Jimenez did not so meet with the SLT or solicit any input from the SLT on the revised budget. 

It appears that petitioner’s objection is that the SLT was not convened during the summer of 2011, when changes needed to be made to the school-based budget by Principal Jimenez due to budget cuts of which the record indicates he first became aware on June 27, 2011.  The parties dispute whether certain members of the SLT were available to meet during the summer.  Petitioner nevertheless asserts that the SLT must meet during the summer to ensure that budget priorities are solicited from all members of the community prior to the beginning of the school year. 

However, I need not resolve these issues.  There does not appear to be a requirement, nor does petitioner cite to any, that the school-based budget be finalized by the beginning of September (see Chancellor’s regulation B-801, of which I take administrative notice).  I find no evidence that the process used by Principal Jimenez in any way hindered Jimenez and the SLT from working together during the start of the 2011-2012 school year to reconcile the budget revisions with the CEP and ensure that the two were aligned.  On the record before me, petitioner has not met his burden of proving that parents and teachers were deprived of their right to participate fully in school based management and shared decision-making through their SLT representatives.  I cannot conclude that Principal Jimenez did not solicit input or consult with the SLT in developing the school-based budget for the 2011-2012 school year or otherwise acted arbitrarily, capriciously or without a rational basis under the circumstances.

Petitioner’s claim that the SLT did not ensure that the school-based budget was aligned with the CEP also fails.  As discussed above, the SLT met with Principal Jimenez and, at least on November 29, 2011, made revisions to the CEP.  Petitioner submitted no affidavits by any member of the SLT expressing disagreement with the alignment of the revised budget to the CEP.  Further, A-655 specifies a process to be followed when the SLT does not agree that the school-based budget is aligned with the CEP.  In those instances, the SLT is authorized to submit a written response to the principal’s justification that the school-based budget and CEP are aligned which is submitted to the community or high school superintendent for approval (A-655[II][6]).  If the SLT submits a written response setting forth its disagreement regarding alignment, the superintendent must provide a decision within 10 school days as to whether the school-based budget is aligned with the CEP (A-655[II][7]).  The principal and the SLT must immediately revise the school-based budget and the CEP in accordance with the superintendent’s determination and directives (id.).  It appears from the record that this process had not been completed at the time of the initiation of the appeal or when the parties’ supplemental affidavits were submitted.  Thus petitioner’s claim that the SLT did not ensure alignment of the school-based budget with the CEP was premature and petitioner was seeking an advisory opinion.  It is well settled that the Commissioner does not issue advisory opinions (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861).

Finally, petitioner failed to meet his burden regarding the adequacy of the training provided to SLTs.  Other than the conclusory assertions in the petition, petitioner submits insufficient evidence to support his claim.  I note that A-655 requires that DOE’s Office for Family Engagement and Advocacy provide regular training sessions to the SLTs in high schools.  Key areas of training include roles and responsibilities of the SLT; team operations; assessing school-wide needs; understanding the school budget; and engaging families and communities in the review and development of a CEP (A-655[VI]).  A copy of the training session agenda submitted by petitioner indicates that the training did address the SLT’s role in developing a CEP that is aligned with the school–based budget.  Petitioner submits no further evidence to support his claim.  Based on the record before, me I am unable to conclude that DOE’s SLT training is inadequate.

In light of the above disposition, I need not address the parties’ remaining contentions.