Appeal of DANIEL M. BERGER from action of the Board of Education of the Blind Brook-Rye Union Free School District and Superintendent Jonathan Ross regarding director of guidance and school administrator positions and guidance program services.

Decision No. 16,996

(November 10, 2016)

Girvin & Ferlazzo, PC, attorneys for respondents, Erin R. Morris, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the actions of the Board of Education of the Blind Brook-Rye Union Free School District (“respondent”) and Superintendent Jonathan Ross (“superintendent”) (collectively “respondents”), to abolish the director of guidance position and create two new administrative positions in the district.  The appeal must be dismissed.

Petitioner is a registered voter and taxpayer residing in the district with two children enrolled in the district’s schools.  The record indicates that the 2016-2017 annual budget approved by the district’s voters on May 17, 2016 included the director of guidance position serving students in kindergarten through twelfth grade.  Thereafter, at a board meeting held on June 6, 2016, respondent approved a resolution to abolish the director of guidance position effective June 30, 2016 and create the new positions of assistant director of pupil services and assistant principal of the middle school as of July 1, 2016.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 5, 2016.

Petitioner contends, inter alia, that respondents either acted in bad faith when presenting the budget for a vote on May 17, 2016, which maintained the director of guidance position, or acted without a rational basis and in an arbitrary and capricious manner, in abolishing the director of guidance position within weeks of the budget vote when there was no change in circumstances to justify a deviation from the duly approved budget plan.  Petitioner argues that, had respondents disclosed an intention to abolish the director of guidance position at the time of the school budget vote, he and other registered voters in the district would have voted against the budget.  Petitioner alleges that by their actions, respondents violated the requirement in Education Law §1716(1) to “present at the annual budget hearing a detailed statement in writing of the amount of money which will be required for the ensuing year for school purposes, specifying the several purposes and the amount for each.”  Petitioner also contends that respondents improperly shifted funds from the program component of the budget to the administrative component of the budget, citing the provisions of Education Law §1716(4).  Petitioner alleges harm to students (particularly one of his own children) and taxpayers as well as unnecessary liability and loss of revenue to the district due to respondents’ actions.  Petitioner also alleges that none of the individuals identified by the superintendent as taking over the responsibilities of the director of guidance holds any school counselor qualifications. In addition, petitioner alleges violations of the rights of the tenured director of guidance, including insufficient notice of the elimination of her position, stating that respondents “may not abolish a position as a subterfuge to terminate a tenured employee” and that the director of guidance “is over 60 years old, and is a member of a protected class.”  Petitioner seeks reversal and annulment of the June 6, 2016 resolution and requests that respondents be enjoined from abolishing the director of guidance position outside of the formal budget process.

Respondents assert that petitioner lacks standing to bring this appeal.  Respondents also contend that they acted in good faith when abolishing the director of guidance position and creating two new administrative positions because “[t]here was a need for additional support at the [b]uilding level,” the director of guidance duties could be redistributed amongst remaining administrative staff without reducing services, and the abolition of the director of guidance position was economically beneficial to the district.  Respondents further contend that petitioner has failed to demonstrate a clear legal right to the relief requested.  Respondents maintain that petitioner failed to demonstrate that he suffered personal injury due to the abolition of the director of guidance position, that the district did not make any representations to the community by submitting a budget which included the director of guidance position, that the district did not make any inappropriate or unauthorized transfers between the program and administrative components of the budget, and that respondents did not violate any rights of the tenured director of guidance.  Respondents request that the petition be dismissed for procedural deficiencies and on the merits.  Respondent also requests that the Commissioner issue a certificate of good faith for respondent board members and the superintendent.

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.[1]

With respect to the issue of petitioner’s standing to maintain the appeal, 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).  District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Strade, et al., 48 Ed Dept Rep 73, Decision No. 15,797; Appeal of Russo, 47 id. 429, Decision No. 15,744; Appeal of Houdek, 47 id. 415, Decision No. 15,740).

To the extent that petitioner attempts to assert claims on behalf of the director of guidance, that individual is not a petitioner in this appeal, and petitioner lacks standing to assert the rights of others (Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631).  The appeal is, therefore, dismissed to the extent petitioner seeks to assert whatever rights the director of guidance may have, on her behalf.  Similarly, it is noted that petitioner submitted over 200 affidavits of district residents, the majority of which stated that “[t]he elimination of the [d]irector of [g]uidance position negatively impacts my child(ren) by leaving them without adequate guidance support and overburdening all of the K-12 guidance counselors remaining in the [d]istrict.”  As noted above, petitioner lacks standing to assert the rights of others, including students other than his own children or district guidance counselors (see Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631; Appeal of Walker, et al., 53 id., Decision No. 16,609).

Petitioner asserts that “[he] has a child entering the 12^th grade in the 2016-2017 school year, who intends to apply to college” and “who is negatively affected by the lack of a [d]irector of [g]uidance to assist with the college admissions process.”  Petitioner also states that “[t]he [d]irector of [g]uidance has a direct line of communication to college admissions officers to advocate for the students in the [d]istrict” and that “[t]he abolition of the [d]irector of [g]uidance position leaves a significant void in the handling of the college admissions process for the 2016 to 2017 school year.”  Therefore, contrary to respondents’ assertion, petitioner has alleged the requisite personal damage or injury necessary to bring this appeal on behalf of his child (see Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609) and has standing to maintain the appeal in that regard.

Petitioner is also a taxpayer and resident of the district, and, as noted above, district residents have standing to challenge an allegedly illegal expenditure of district funds.  To the extent petitioner makes such a challenge in asserting violations of Education Law §1716, I find that he has standing for this reason as well (Appeals of Giardina and Carbone, 43 Ed Dept Rep 395, Decision No. 15,030).

With respect to the timeliness of petitioner’s claims, 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).  Petitioner’s appeal of respondent board’s June 6, 2016 resolution abolishing the director of guidance position and creating the two new administrative positons is timely as it was commenced on June 21, 2016, within the 30 day period.

Respondents argue that “[p]etitioner’s claim regarding the budget is untimely.”  However, petitioner states in his reply that respondents “misconstrue” the petition as seeking to vacate or overturn the May 17, 2016 budget vote.  Rather, petitioner states that he “seeks to have [respondents] abide by the representations made in the budget” which included “a line item for a [d]irector of [g]uidance position, as well as a commitment to preserve and enhance the [d]istrict’s [g]uidance [d]epartment.”  As relief, petitioner does not include any request to nullify the May 17, 2016 budget vote.  Consequently, I need not address respondents’ timeliness argument with respect to that vote.

Turning to the merits, petitioner claims that respondents acted arbitrarily and “without a rational basis” in abolishing the position after the May 17, 2016 budget vote occurred.  Petitioner cites no authority to support his position.  Moreover, as respondents note, it is well-settled that the authority to create and/or abolish positions rests with the board of education, which may abolish and/or consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith (Education Law §1709[16] and [33]; Matter of Young v. Bd. of Educ. of Central School Dist. No. 6, Town of Huntington, et al., 35 NY2d 31, 34 [abolition of attendance teacher position]; Cohen v. Crown Point Cent. School Dist., et al., 306 AD2d 732 [abolition of civil service business manager position]; Currier v. Tompkins-Seneca-Tioga Bd. of Coop. Educ. Services, 80 AD2d 979 [abolition of Director of Department of Continuing Education position]).  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 this case, the superintendent avers that, while the decision to abolish the position was not “driven by budgetary constraints,” it allowed the district to hire two new administrators at a cost not to exceed that of the director of guidance position, thereby providing needed additional support to the district’s building-level principals and pupil services department while continuing to maintain the duties associated with the director of guidance position.  Other than petitioner’s conclusory assertions, he provides no evidence to support his contention that respondents acted arbitrarily or in “bad faith” and has, therefore, failed to carry his burden with respect to this claim.

While petitioner appears to argue that, by abolishing the director of guidance position, respondents are unable to provide an adequate guidance program and that the individuals identified as taking over the responsibilities of the director of guidance do not hold any school counselor qualifications, petitioner fails to articulate any law or regulation violated by respondents in this regard.  In particular, §100.2(j) of the Commissioner’s regulations, which sets forth K-12 guidance program requirements, does not require that school districts employ a director of guidance.  Furthermore, while these regulations, require, inter alia, “the services of personnel certified or licensed as school counselors,” for grades 7-12,[2] as stated by the Court of Appeals in Steele v. Bd. Of Educ. of the City of New York, 40 NY2d 456, 466-467 (1976):

There is no mandate that this be done through the creation or retention of guidance counseling positions. The requisite programs could likely be maintained by utilizing the services of certified personnel whose primary duties are in other positions.

Here, the superintendent avers that while the director of guidance position would be abolished, “[t]he [d]irector of [g]uidance duties would not be eliminated, nor would the counseling/guidance services that students receive decline.”  According to the affidavit, “the duties would merely be distributed amongst remaining administrators and staff” in accordance with an attached list which notes which director of guidance duties would be assigned to which district staff including the superintendent, principals, and school counselors (among others), as well as the individuals in the two new administrative positions. Although respondents do not specifically state which district personnel are certified as school counselors, other than his conclusory assertion that “[n]ot one of the individuals that [the superintendent] identified [at the June 6 meeting] holds any school counselor qualifications,” which respondents deny, petitioner has not introduced evidence that proves that respondents are not providing an adequate guidance program in compliance with §100.2(j) of the Commissioner’s regulations or that respondents have caused harm to his children by their actions.  On this record, therefore, I cannot conclude that petitioner has carried his burden and established a clear right to relief.

With respect to petitioner’s allegations that respondents violated the provisions of Education Law §1716(1) “to present at the annual budget hearing a detailed statement in writing of the amount of money which will be required for the ensuing year for school purposes, specifying the several purposes and the amount for each” and improperly shifted funds from the program component of the budget to the administrative component of the budget, citing the provisions of Education Law §1716(4), I also conclude that petitioner has failed to carry his burden of establishing a clear right to relief.

As noted by respondents, Education Law §1716 relates to “[e]stimated expenses for the ensuing year” and respondents state that they “presented a budget with an estimation of administrative expenses, as the administrative team was currently formed, for the 2016-17 school year.”  Thus, on this record, I cannot conclude that respondents failed to fulfill their statutory responsibilities in this regard.  With respect to the June 6, 2016 resolution and subsequent transfers alleged by petitioner to improperly shift funds from the program component of the budget to the administrative component of the budget, citing the provisions of Education Law §1716(4), respondents indicate that this action did not exceed the total budgeted amount and that all the positions - the director of guidance, assistant director of pupil services, and assistant principal of the middle school - were contained in the administrative component of the budget.  Thus, no funds were shifted, improperly or otherwise, from the program component to the administrative component.

 Although the appeal must be dismissed, one final administrative matter remains.  Respondents request that I issue a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify individuals for legal fees and expenses incurred in defending a proceeding arising out of the exercise of powers or performance of duties as a board trustee.  It is appropriate to issue such certification unless it is established on the record that the requesting individual acted in bad faith (Appeal of Fletcher and Ferguson, 55 Ed Dept Rep, Decision No. 16,901; Application of Anderson, 54 id., Decision No. 16,613; Application of Lieberman, 54 id., Decision No. 16,483).  In view of this decision, and the fact that there has been no finding that respondents acted in bad faith, they are entitled to receive the requested certificate.

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

THE APPEAL IS DISMISSED.

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