Congratulations Michael Thomas! Your win helps all of us.
Betsy Combier
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Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials
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Matter of Thomas v New York
City Dept. of Educ.
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2016 NY Slip Op
06989
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Decided on October
25, 2016
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Appellate Division,
First Department
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Kapnick, J., J.
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Published by New York State
Law Reporting Bureau pursuant to Judiciary Law § 431.
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This opinion is
uncorrected and subject to revision before publication in the Official
Reports.
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Decided on October 25, 2016 SUPREME COURT, APPELLATE DIVISION First Judicial Department
John W. Sweeny, Jr., J.P.
Dianne T. Renwick
Sallie Manzanet-Daniels
Barbara R. Kapnick,JJ.
100538/14 203
[*1]In re Michael P. Thomas,
Petitioner-Respondent, Letitia James, etc., et al.,
Petitioners-Intervenors-Respondents,
v
New York City Department of Education, et al.,
Respondents-Appellants. The Council of School Supervisors and Administrators,
Amicus Curiae.
Respondents appeal from the order and judgment
(one paper) of the Supreme Court, New York County (Peter H. Moulton, J.),
entered April 23, 2015, which granted the petition seeking, inter alia, a
determination that respondents violated the Open Meetings Law by denying the
general public (petitioner) access to meetings of a New York City public
schools School Leadership Team.
Zachary W. Carter, Corporation Counsel, New York
(Jane L. Gordon, Cecelia Chang and Richard Dearing of counsel), for appellants.
Michael P. Thomas, respondent pro se.
New York Lawyers for the Public Interest, New
York (Mark Ladov of counsel) and Advocates for Justice, New York (Laura
D. [*2]Barbieri of counsel), for Letitia James and
Class Size Matters, respondents.
David N. Grandwetter and Marvin Pope, New York,
for the Council of School Supervisors and Administrators, amicus curiae.
KAPNICK, J.
In this article 78
proceeding, petitioner sought, inter alia, a declaration that School Leadership
Teams (SLTs) at New York City public schools are “public bodies” whose meetings
must be open to the general public pursuant to the Open Meetings Law.[FN1]
Background
The Education Law
requires each New York City public school to have a “school-based management
team” (SBMT) (Education Law §§ 2590-h[15][b], [b-1]). By regulation, respondent
New York City Department of Education (DOE) has implemented this mandate through
the establishment of SLTs in every school (see Mulgrew v Board of Educ. of City
Sch. Dist. of City of N.Y., 75 AD3d 412,
413 [1st Dept 2010]; NYC Chancellor’s Regulations [CR] A-655). SLTs have
between 10 and 17 members, made up of school parents, teachers, staff, and
administrators, and may also include “representatives of Community Based
Organizations” (CR A-655 §§ III[A],[B],[C][2]). The school principal, president
of the parent association, and chapter leader of the teachers’ union must be
members. At least two student members are also required for each high school (id. at [C][2]). SLTs must meet at least once a
month “at a time that is convenient for the parent representatives” (Education
Law § 2590-h[15][b-1][ii]). Notice of this meeting must be provided in a manner
“consistent with the open meetings law” (Education Law § 2590-h[15][b-1][iii]).
The SLT helps formulate
“school-based educational policies” and ensure that “resources are aligned to
implement those policies” (CR A-655 § I; see Education
Law § 2590-h[15][b-1][i]). The SLT’s primary responsibility is to develop the
school’s annual comprehensive education plan (CEP), which sets the school’s
needs, goals, and instructional strategies (see Education
Law § 2590-h[15][b-1][i]; CR A-655 § II). In this regard, the SLT “must use
consensus based decision-making and must seek assistance” from the “District
Leadership Team” or the district superintendent “if it is unable to reach
consensus on the CEP” (CR A-655 § II[A][4]). If the SLT is “still not able to
reach consensus,” then the superintendent “shall make the determination on
developing the CEP” (id.).
SLTs also “consult on the school-based budget
pursuant to” Education Law § 2590-r. That section, in turn, provides for “the
principal to propose a school-based budget, after consulting with members of
the” SLT (Education Law § 2590-r[b][i]). Consistent with these statutory
provisions, DOE regulations make clear that the principal “is responsible for”
and “makes the final determination concerning the school-based budget,” albeit
only after “consult[ing] with the SLT during this development process so that
the budget will be aligned with the CEP” (CR A-655 § II[A][2]).
Petitioner is a retired DOE mathematics teacher.
On March 17, 2014, petitioner asked the Chair (Victoria Trombetta) and three
mandatory members (Linda Hill, Principal; Laura Cavalerri, [*3]PTA President; and Francesco Portelos, UFT Chapter Leader) of the
SLT for IS 49, a Staten Island middle school, for permission to attend the
SLT’s next meeting. By email dated March 18, 2014, Trombetta invited petitioner
to attend the SLT’s April 1 meeting.
On March 19, 2014, Trombetta rescinded the
invitation. Trombetta explained that she had “reviewed the SLT Bylaws” and
“realized” that “only” “school community members” are “permitted to attend” SLT
meetings. Since petitioner was “not a member of the school community,” he could
not attend a meeting. Petitioner agreed with Trombetta that the SLT’s “bylaws
are consistent with DOE policy,” but explained that he wanted to “challenge
that policy in court” and needed to be “denied entrance onsite” in order to “have
standing.'” Petitioner informed Trombetta that he would attempt to gain
entrance to the meeting. On April 1, 2014, petitioner presented himself to
security at IS 49’s front entrance, and was denied admittance to the SLT
meeting.
Thereafter, petitioner commenced
this article 78 proceeding by notice and petition verified May 17, 2014.
Petitioner contended that the SLT was a “public body,” such that its refusal to
permit him to attend the meeting violated the Open Meetings Law. DOE served an
answer verified August 19, 2014, denying the petition’s material allegations
and asserting affirmative defenses. Petitioner served a reply verified August
26, 2014, responding to the answer.[FN2]
Supreme Court granted
the petition and found that “SLT meetings entail a public body performing
governmental functions,” and are thus “subject to the Open Meetings Law.”
Relying on Matter of Perez v City Univ. of N.Y. (5 NY3d 522 [2005]) and Matter of Smith v City Univ. of
N.Y. (92 NY2d 707 [1999]), the court reasoned:
“First, SLTs are established pursuant to the
Education Law, which gives them a role in school governance. DOE’s own by-laws
specify that SLTs are part of the governance structure’ of New York City’s
Schools. The public’s interest in SLT meetings is demonstrated by the fact that
announcement of such meetings must be made in accordance with the Open Meetings
Law.
“Second, . . . SLTs play a crucial iterative
role in developing CEPs and ensuring that CEPs are aligned with the school’s
budget. A principal must consult with her school’s SLT in developing a CEP. If
the principal and her SLT cannot agree on the contours of the annual CEP, then
the District Superintendent may resolve the difference. However, the SLT must
have input into the CEP’s development. In December 2007 the DOE issued a prior
version of Regulation A-655 which gave principals in New York City final decision
making authority over the CEP. The State Education Commissioner ruled that the
regulation was in derogation of Education Law § 2590-h(15)(b-1), because it
stripped the SLTs of [*4]their basic, statutorily mandated authority to
develop the CEP.’
“The CEP is an important blueprint at each
school. It describes annual goals concerning student achievement, teacher
training, parent involvement, and compliance with federal law including Title
I. The CEP also includes action plans’ to achieve those goals. . . . [T]he role
of an SLT in formulating its school’s CEP is one of decision maker. In
fulfilling this role the SLT acts in conjunction with, and not subordinate to,
the school’s principal. If it is fulfilling its statutory role, a school’s SLT
is not a mere advisor to the principal. SLTs are also stakeholders and
participants in school closings. These SLT activities touch on the core
functions of a public school. The proper functioning of public schools is a
public concern, not a private concern limited to the families who attend a
given public school” (citations and footnotes omitted).
Accordingly, the court
held that DOE’s “failure to open School Leadership Team Meetings to the general
public pursuant to the Open Meetings Law is arbitrary and capricious and
contrary to law.”[FN3]
Promulgated in 1976
following the Watergate scandal, the Open Meetings Law “was intended — as its
very name suggests — to open the decision-making process of elected officials
to the public while at the same time protecting the ability of the government
to carry out its responsibilities,” and its provisions are “to be liberally
construed in accordance with the statute’s purposes” (Matter of Gordon v Village of Monticello, 87 NY2d 124,
126-127 [1995]). In enacting the law, “the Legislature sought to ensure that
public business be performed in an open and public manner and that the citizens
of this state be fully aware of and able to observe the performance of public
officials and attend and listen to the deliberations and decisions that go into
the making of public policy'” (Matter of Perez v City Univ. of
N.Y., 5 NY3d at 528; Public Officers Law § 100).
The Open Meetings Law provides generally that “[e]very
meeting of a public body shall be open to the general public” (Public Officers
Law § 103 [a]). The statute defines “public body” as “any entity, for which a
quorum is required in order to conduct public business and which consists of
two or more members, performing a governmental function for the state or for an
agency or department thereof” (Public Officers Law § 102[2]). A “meeting” is
“the official convening of a public body for the purpose of conducting public
business” (Public Officers Law § 102[1]).
Whether an entity is a
public body turns on various criteria, including “the authority under which the
entity was created, the power distribution or sharing model under which it
exists, the nature of its role, the power it possesses and under which it
purports to act, and a realistic appraisal of its functional relationship to
affected parties and constituencies” (Matter of Smith v City Univ. of
N.Y., 92 NY2d at 713).
The “mere giving of
advice, even about governmental matters, is not itself a governmental function”
(Goodson Todman Enters. v Town Bd. of Milan, 151 AD2d
642, 643 [2d Dept 1989], lv denied 74
NY2d 614 [1989]). It has thus been held that an entity which is “advisory in
nature” and “d[oes] not perform governmental functions” will not be deemed to
be a “public body” for purposes of the Open Meetings Law (Matter of Jae v Board of Educ. of
Pelham Union Free School Dist., 22 AD3d 581,
584 [2d Dept 2005], lv denied 6
NY3d 714 [2006]; see also Smith, 92 NY2d at
714 [“It may be that an entity exercising only an advisory function would not
qualify as a public body within the purview of the Open Meetings Law”]). By
contrast, “a formally chartered entity with officially delegated duties and
organizational attributes of a substantive nature . . . should be deemed a
public body that is performing a governmental function” (Smith, 92 NY2d at 714).
If a court “determines that a public body failed
to comply with [the Open Meetings Law], the court shall have the power, in its
discretion, upon good cause shown, to declare that the public body violated
[the Open Meetings Law] and/or declare the action taken . . . void” (Public
Officers Law § 107[1]).
DOE argues that the SLTs do not perform
“governmental functions” characteristic of public bodies under the Open
Meetings Law, but rather merely “serve a collaborative, advisory function.”
Amicus curiae Council of School Supervisors and Administrators supports DOE’s
arguments and emphasizes that opening SLT meetings to the public would
frustrate SLTs’ collaborative goals by permitting outsiders to “attend for
their own personal agendas or satisfaction in open or veiled dissonance from”
the SLT’s purpose.
Petitioner, along with intervenors Letitia James
and Class Size Matters, argue that the trial court properly analyzed the
question of whether SLTs are public bodies because they were created under the
authority of state law as a mandatory and necessary part of the governing structure
of the New York City public school system.
As the IAS court
properly found, under the factors set forth in Smith and Perez, SLTs qualify as a public body performing
governmental functions, and, therefore, are subject to the Open Meetings Law.
It cannot be disputed that SLTs are established
pursuant to state law and are a part of DOE’s “governance structure.” It also
cannot be disputed that SLTs have decision making authority to set educational
and academic goals for a school through the CEP. The notion that SLTs merely
serve an advisory role is not supported by the regulatory history. As the IAS
court pointed out in its decision, in December 2007, the DOE issued a prior
version of Regulation A-655 in an effort to give principals the final decision
making authority over CEPs. However, the revised regulation was overruled by
the State Education Commissioner because it violated the Education Law’s
mandate that SLTs have a “basic, statutorily mandated authority” to develop the
CEP.
Although principals do
have the final approval over a school’s budget, principals must consult with
SLTs, so that the budget and the CEP can be aligned. The fact that the SLT and
principal must collaborate with each other does not, in and of itself,
disqualify the SLT from being considered a public body performing governmental
functions (see Perez, 5 NY3d at 530).
Moreover, state law requires that an SLT hold
monthly meetings during the school year and that notice of the meetings be
provided in accordance with the Open Meetings Law. This is a clear indication
of the public concern over the functioning of SLTs and public schools in
general.
Accordingly, the order and judgment (one paper)
of the Supreme Court, New York County (Peter H. Moulton, J.), entered April 23,
2015, granting the petition seeking, inter alia, a determination that
respondents violated the Open Meetings Law by denying the general public
(petitioner) access to a meeting of a New York City public school’s SLT, should
be affirmed, [*5]without costs.
All concur.
Order, Supreme Court, New York County (Peter H.
Moulton, J.), entered April 23, 2015, affirmed, without costs.
Opinion by Kapnick, J. All concur.
Sweeny, J.P., Renwick, Manzanet-Daniels,
Kapnick, JJ.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST
DEPARTMENT.
ENTERED: OCTOBER 25, 2016
CLERK
Footnotes
Footnote 1: The parties and the IAS court, however, treated this proceeding as a pure article 78 proceeding and not a hybrid article 78/declaratory judgment action. Thus, the court reviewed respondents’ determination to deny petitioner access to the meeting under the arbitrary and capricious standard and made no declaration.
Footnote 2: By order to show cause dated January 12, 2015, Letitia James, the New York City Public Advocate, and Class Size Matters, a New York-based nonprofit organization dedicated to achieving smaller class sizes across the country, moved to intervene as petitioners. The intervenors served a proposed petition generally echoing the main petition. The intervenors’ application was granted as part of the order on appeal herein.
Footnote 3: By order entered October 15, 2015, this Court ruled that an automatic stay of the order is in effect, pursuant to CPLR 5519(a)(1). By order entered December 29, 2015, this Court granted the Council of School Supervisors and Administrators leave to appear as amicus curiae.
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