Home » 2011 Issues » January 05, 2011 » EDU-52-10-00012-E Appeals to Commissioner of Education Relating to New York City Charter School Location/Co-Location and Building Usage Plans
EDU-52-10-00012-E Appeals to Commissioner of Education Relating to New York City Charter School Location/Co-Location and Building Usage Plans
1/5/11 N.Y. St. Reg. EDU-52-10-00012-E
NEW YORK STATE REGISTER
VOLUME XXXIII, ISSUE 1
January 05, 2011
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
EMERGENCY RULE MAKING
I.D No. EDU-52-10-00012-E
Filing No. 1314
Filing Date. Dec. 21, 2010
Effective Date. Dec. 21, 2010
Appeals to Commissioner of Education Relating to New York City Charter School Location/Co-Location and Building Usage Plans
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Parts 275 and 276 of of Title 8 NYCRR.
Statutory authority:
Education Law, sections 101, 207, 305(1) and (2), 310, 311 and 2853(3)(a-5); and L. 2010, ch. 101, section 15
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
The proposed amendment is necessary to implement Chapter 101 of the Laws of 2010 by establishing procedures for expedited appeals relating to New York City charter school location/co-location and building usage plans brought pursuant to Education Law §§ 310 and 2853(3)(a-5). The statute provides for expedited Education Law § 310 appeals to the Commissioner of:
(1) determinations by the New York City School District to locate or co-locate a charter school within a public school building;
(2) implementation of and compliance with the building usage plan developed pursuant to Education Law § 2853(a-3); and
(3) revision of a building usage plan that is appealed on the grounds that the revision fails to meet the standards set forth in Education Law § 2853(3)(a-3)(2)(B), which requires the building usage plan to include a proposal for the collaborative usage of shared resources and spaces between the charter school and the non-charter schools which assures equitable access to the facilities in a similar manner and at reasonable times to non-charter school students as provided to charter school students.
Pursuant to the statute, petitions in such appeals must be dismissed, adjudicated or disposed of by the Commissioner within ten days of the receipt of the New York City School District's response. The proposed amendment merely modifies existing notice, service and filing requirements in Parts 275 and 276 of the Commissioner's Regulations to provide for such expedited appeals consistent with statutory requirements.
Because the Board of Regents meets at fixed intervals, the earliest the proposed amendment could be presented for adoption by regular (non-emergency) action, after publication of a Notice of Proposed Rule Making in the State Register and expiration of the 45-day public comment period prescribed in State Administrative Procedure Act (SAPA) section 202(1), would be at the March 7-8, 2011 Regents meeting. Since SAPA section 203(1) provides that an adopted rule cannot become effective until a Notice of Adoption is published in the State Register, the earliest date a rule adopted at the March 2011 Regents meeting can take effect is March 30, 2011. However, modified procedures for expedited New York City charter school co-location appeals need to be in place now, in order to ensure that decisions in such appeals can be timely rendered pursuant to statutory requirements.
Emergency action to amend Parts 275 and 276 of the Commissioner's Regulations is necessary for the preservation of the general welfare in order to ensure that procedures are in place as soon as possible for expedited appeals relating to New York City charter school location/co-location and building usage plans brought pursuant to Education Law §§ 310 and 2853(3)(a-5) so that the parties and their attorneys are on notice of the procedures they must follow, and decisions in such appeals are handled expeditiously pursuant to statutory requirements.
It is anticipated that the proposed amendment will be presented for permanent adoption at the March 2011 meeting of the Board of Regents, after expiration of the 45-day public comment period for proposed rule makings prescribed in the State Administrative Procedure Act.
Subject:
Appeals to Commissioner of Education relating to New York City charter school location/co-location and building usage plans.
Purpose:
Establish special procedures for appeals relating to New York City charter school location/co-location and building usage plans.
Substance of emergency rule:
The Board of Regents has adopted an amendment of Parts 275 and 276 of the Commissioner's Regulations, as an emergency rule, effective December 21, 2010, relating to appeals concerning New York City charter school location/co-location and building usage plans brought pursuant to Education Law §§ 310 and 2853(3)(a-5). The following is a summary of the substance of the emergency rule.
Section 275.8(a) and (b) of the Commissioner's Regulations are amended to require that the memorandum of law in such appeals be served with the petition.
Section 275.9(a) is amended to require that pleadings and papers in such appeals be filed with the Department's Office of Counsel within the period specified in new section 276.11.
Section 275(a) is amended to provide that petitions in such appeal must contain the notice prescribed in section 276.11.
Section 275.13(a) is amended to provide that the time to answer in an expedited charter school location/co-location appeal shall be governed by Education Law section 2853(3)(a-5) and section 276.11.
Section 275.14(a) is amended to provide that a reply in an expedited charter school location/co-location appeal shall be served within the time prescribed by section 276.11.
Section 276.1(d) is added to provide that the provisions of section 276.1, relating to stay of proceedings, shall not apply to an expedited charter school location/co-location appeal.
Section 276.2(g) is added to provide that the provisions of section 276.2, relating to oral argument, shall not apply to an expedited charter school location/co-location appeal.
Section 276.4(a) is amended to provide that memoranda of law in expedited charter school location/co-location appeals shall be served and filed in the manner prescribed in section 276.11.
Section 276.8(f) is added to provide that the provisions of section 276.8, relating to reopening of a prior decision, shall not apply to an expedited charter school location/ co-location appeal.
Section 276.11 is added to establish procedures in expedited charter school location/co-location appeals.
Section 276.11(a) sets forth definitions of "board of education" and "day."
Section 276.11(b) sets forth the applicability of the section. The procedures set forth in the section shall apply to appeals pursuant to Education Law § 2853(3)(a-5) from:
(1) final determinations of the board of education to locate or co-locate a charter school within a public school building;
(2) the implementation of, and compliance with, the building usage plan developed pursuant to Education Law § 2853(3)(a-3); and/or
(3) revisions of such a building usage plan on the grounds that such revision fails to meet the standards set forth in Education Law § 2853(3)(a-3)(2)(B).
Except as provided in section 276.11, the procedures set forth in Part 275 and Part 276 shall govern the practice in such appeals. The initiation of an appeal shall not, in and of itself, effect a stay of any proceedings on the part of respondent and a stay order shall not be available in an expedited appeal pursuant to section 276.11.
Section 276.11(c) establishes requirements relating to the petition and notice of petition in such appeals. The petition shall be served in the manner prescribed in section 275.8(a) of this Title, together with all of petitioner's affidavits, exhibits and supporting papers and petitioner's memorandum of law. The petition may not include any claims challenging actions other than determinations of the City School District of the City of New York to locate or co-locate a charter school within a public school building or the implementation of, and compliance with, the building usage plan developed pursuant to Education Law § 2853(a-3), or the revision of such a building usage plan, as set forth in subdivision (a) of this section. The petition must contain the notice prescribed in section 276.11. The failure to use the Notice of Petition required by this subdivision shall result in dismissal of the expedited appeal and the Commissioner may dismiss the appeal on such ground at any stage of the proceedings.
Section 276.11(d) establishes requirements for the filing of pleadings and papers. Within 1 day after the service of any pleading or paper, the original of any pleading or paper served under section 276.11, together with the affidavit of verification and an affidavit proving the service of a copy thereof, shall be transmitted to the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234, by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such pleading or paper within 24 hours of service. The affidavit of service shall be in substantially the form set forth in section 275.9. The fee for filing the petition shall be as provided in section 275.9(c).
Section 276.11(e) establishes requirements relating to service of subsequent pleadings and supporting papers. An answer shall be served within 10 days of service of the petition and a reply to each affirmative defense raised in the answer shall be served within two days of service of the answer. The Commissioner, in his/her sole discretion, may excuse a failure to serve an answer or reply within the time prescribed herein for good cause beyond the control of the requesting party; the reasons for such failure shall be set forth in the answer or reply. Service of all subsequent pleadings and supporting papers shall be made by personal delivery or next day delivery by express mail or a private express delivery service, in accordance with the provisions of section 275.8(b); provided that, upon consent of the receiving party, service of subsequent pleadings and supporting papers may be made by electronic mail (e-mail) communication.
Section 276.11(f) establishes requirements relating to the memorandum of law. The petitioner's memorandum of law shall be served and filed with the petition and respondent's memorandum of law shall be served and filed with the answer. The petitioner may serve and file a reply memorandum of law with the reply.
Section 276.11(g) establishes requirements relating to the dismissal of claims. Any claims included in the petition in an expedited appeal in violation of 276.11(c)(1) shall be dismissed by the Commissioner without prejudice to commencing a non-expedited appeal pursuant to Education Law § 310, Part 275 of this Title and this Part within 10 days after receipt of the decision dismissing such claims. Any claims raised in a non-expedited appeal brought pursuant to Education Law § 310, Part 275 of this Title and Part 276 which challenge actions set forth in section 276.11(b)(1) shall be dismissed with prejudice unless the petitioner has waived the right to an expedited appeal in accordance with section 276.11(h).
Section 276.11(h) establishes procedures for waiver of an expedited appeal. The petitioner may intentionally waive the right to an expedited appeal pursuant to this section and opt to commence a non-expedited appeal pursuant to Education Law § 310, Part 275 of this Title and this Part. Such waiver shall be in writing and shall explicitly state that the right to an expedited appeal pursuant to Education Law § 2853(3)(a-5) and section 276.11 of the Regulations of the Commissioner is waived.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-52-10-00012-P, Issue of December 29, 2010. The emergency rule will expire March 20, 2011.
Text of rule and any required statements and analyses may be obtained from:
Chris Moore, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 473-8296, email: legal@mail.nysed.gov
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law section 101 continues the existence of the Education Department, with the Board of Regents as its head, and authorizes the Regents to appoint the Commissioner as chief administrative officer of the Department, which is charged with the general management and supervision of public schools and the educational work of the State.
Education Law section 207 authorizes the Regents and Commissioner to adopt rules and regulations implementing State law regarding education.
Education Law section 305(1) designates the Commissioner as chief executive officer of the State system of education and the Regents, and authorizes the Commissioner to enforce laws relating to the educational system and to execute the Regents' educational policies. Section 305(2) authorizes the Commissioner to have general supervision over schools subject to the Education Law.
Education Law section 310 provides that an aggrieved party may appeal by petition to the Commissioner of Education in consequence of certain specified actions by school districts and school officials.
Education Law section 311 authorizes the Commissioner to regulate the practice of appeals to the Commissioner brought pursuant to Education Law section 310.
§ 15 of Chapter 101 of the Laws of 2010 amended Education Law section 2853(3) and added five new paragraphs (a-1) through (a-5) to, among other things, establish requirements for the location or co-location of a charter school in a public school building. Education Law § 2853(3)(a-5) provides for an expedited Education Law § 310 appeal to the Commissioner of:
(1) determinations by the New York City School District to locate or co-locate a charter school within a public school building;
(2) implementation of and compliance with the building usage plan developed pursuant to Education Law § 2853(a-3), that has been approved by the board of education pursuant to Education Law § 2590-g(1)(h) after satisfying the requirements of Education Law § 2590-h(2-a); and
(3) revision of a building usage plan approved by the board of education consistent with the requirements pursuant to Education Law § 2590-g(7), that is appealed on the grounds that the revision fails to meet the standards set forth in Education Law § 2853(3)(a-3)(2)(B).
2. LEGISLATIVE OBJECTIVES:
The proposed amendment is consistent with the authority conferred by the above statutes to regulate the practice and procedures to be followed in Education Law section appeals, and is necessary to implement Chapter 101 of the Laws of 2010 by establishing procedures for appeals relating to New York City charter school location/co-location and building usage plans brought pursuant to Education Law §§ 310 and 2853(3)(a-5).
3. NEEDS AND BENEFITS:
The proposed amendment is necessary to implement Chapter 101 of the Laws of 2010 by establishing procedures for expedited appeals relating to New York City charter school location/co-location and building usage plans brought pursuant to Education Law §§ 310 and 2853(3)(a-5). Education Law § 2853(3)(a-5) requires that petitions in such appeals must be dismissed, adjudicated or disposed of by the Commissioner within ten days of the receipt of the New York City School District's response. The proposed amendment modifies existing notice, service and filing requirements in Parts 275 and 276 of the Commissioner's Regulations, relating to appeals to the Commissioner pursuant to Education Law § 310, to provide for such expedited appeals consistent with statutory requirements. The proposed amendment establishes procedures that accommodate the extremely short time frames imposed by the statute, while assuring that due process is provided through procedures which are workable and fair to both parties.
4. COSTS:
Cost to the State: None.
Costs to local government: None.
Cost to private regulated parties: None.
Cost to regulating agency for implementation and continued administration of this rule: None.
The proposed amendment will not impose any costs on the State or local governments beyond those imposed by State law. The proposed amendment modifies existing notice, service and filing requirements in Parts 275 and 276 of the Commissioner's Regulations, relating to appeals to the Commissioner pursuant to Education Law § 310, to provide for expedited appeals relating to charter school location/co-location and building usage plans consistent with statutory requirements.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment will not impose any additional program, service, duty or responsibility beyond those imposed by State statutes. The proposed amendment is necessary to implement Chapter 101 of the Laws of 2010, by establishing procedures for appeals relating to charter school location/co-location and building usage plans brought pursuant to Education Law §§ 310 and 2853(3)(a-5). The proposed amendment modifies existing notice, service and filing requirements in Parts 275 and 276 of the Commissioner's Regulations, relating to appeals to the Commissioner pursuant to Education Law § 310, to provide for expedited appeals consistent with statutory requirements.
6. PAPERWORK:
The proposed amendment imposes no additional reporting, forms or other paperwork requirements. The proposed amendment modifies existing notice, service and filing requirements in Parts 275 and 276 of the Commissioner's Regulations, relating to appeals to the Commissioner pursuant to Education Law § 310, to provide for expedited appeals relating to New York City charter school location/co-location and building usage plans consistent with statutory requirements.
7. DUPLICATION:
The proposed amendment does not duplicate, overlap or conflict with State and Federal rules or requirements, and is necessary to implement Chapter 101 of the Laws of 2010, by establishing procedures for appeals relating to New York City charter school location/co-location and building usage plans brought pursuant to Education Law §§ 310 and 2853(3)(a-5).
8. ALTERNATIVES:
There were no significant alternatives. The proposed amendment is necessary to implement Chapter 101 of the Laws of 2010, by establishing procedures for appeals relating to New York City charter school location/co-location and building usage plans brought pursuant to Education Law §§ 310 and 2853(3)(a-5).
9. FEDERAL STANDARDS:
The proposed amendment is necessary to implement Chapter 101 of the Laws of 2010, by establishing procedures relating to New York charter school location/co-location and building usage plans brought pursuant to Education Law §§ 310 and 2853(3)(a-5). There are no applicable standards of the Federal government for the same or similar subject areas.
10. COMPLIANCE SCHEDULE:
It is anticipated that regulated parties will be able to achieve compliance with the provisions of the proposed amendment by its effective date.
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment relates to appeals to the Commissioner of Education pursuant to Education Law §§ 310 and 2853(3)(a-5) relating to New York City charter school location/co-location and building usage plans. Education Law § 2853(3)(a-5) requires that petitions in such appeals must be dismissed, adjudicated or disposed of by the Commissioner within ten days of the receipt of the New York City School District's response. The proposed amendment modifies existing notice, service and filing requirements in Parts 275 and 276 of the Commissioner's Regulations, relating to appeals to the Commissioner pursuant to Education Law § 310, to provide for such expedited appeals consistent with statutory requirements. The proposed amendment does not impose any adverse economic impact, reporting, recordkeeping or other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
Local Governments:
EFFECT OF RULE:
The proposed amendment applies to the City School District of the City of New York.
COMPLIANCE REQUIREMENTS:
The proposed amendment does not impose any additional compliance requirements beyond those imposed by State law. The proposed amendment is necessary to implement Chapter 101 of the Laws of 2010, by establishing procedures for appeals relating to New York City charter school location/co-location and building usage plans brought pursuant to Education Law §§ 310 and 2853(3)(a-5). Education Law § 2853(3)(a-5) requires that petitions in such appeals must be dismissed, adjudicated or disposed of by the Commissioner within ten days of the receipt of the New York City School District's response. The proposed amendment modifies existing notice, service and filing requirements in Parts 275 and 276 of the Commissioner's Regulations, relating to appeals to the Commissioner pursuant to Education Law § 310, to provide for expedited appeals consistent with statutory requirements.
PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional professional services requirements.
COMPLIANCE COSTS:
The proposed amendment does not impose any additional costs beyond those imposed by State law. The proposed amendment merely modifies existing notice, service and filing requirements in Parts 275 and 276 of the Commissioner's Regulations, relating to appeals to the Commissioner pursuant to Education Law § 310, to provide for expedited appeals consistent with statutory requirements.
ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed amendment does not impose any new economic costs or technological requirements on local governments.
MINIMIZING ADVERSE IMPACT:
The proposed amendment does not impose any additional compliance requirements or compliance costs beyond those imposed by State law. The proposed amendment is necessary to implement Chapter 101 of the Laws of 2010, by establishing procedures for appeals of New York City charter school location/co-location and building usage plans brought pursuant to Education Law §§ 310 and 2853(3)(a-5). Education Law § 2853(3)(a-5) requires that petitions in such appeals must be dismissed, adjudicated or disposed of by the Commissioner within ten days of the receipt of the New York City School District's response. The proposed amendment modifies existing notice, service and filing requirements in Parts 275 and 276 of the Commissioner's Regulations, relating to appeals to the Commissioner pursuant to Education Law § 310, to provide for expedited appeals consistent with statutory requirements.
LOCAL GOVERNMENT PARTICIPATION:
A copy of the proposed amendment was provided to the New York City Department of Education for review and comment.
Rural Area Flexibility Analysis
The proposed amendment relates to appeals to the Commissioner of Education pursuant to Education Law §§ 310 and 2853(3)(a-5) relating to New York City charter school location/co-location and building usage plans. Education Law § 2853(3)(a-5) requires that petitions in such appeals must be dismissed, adjudicated or disposed of by the Commissioner within ten days of the receipt of the New York City School District's response. The proposed amendment modifies existing notice, service and filing requirements in Parts 275 and 276 of the Commissioner's Regulations, relating to appeals to the Commissioner pursuant to Education Law § 310, to provide for such expedited appeals consistent with statutory requirements. The proposed amendment is applicable to the City School District of the City of New York and will not have an adverse impact on rural areas or impose reporting, recordkeeping or other compliance requirements on public or private entities in rural areas. Because it is evident from the nature of the proposed amendment that it does not affect rural areas or public or private entities in rural areas, no further measures were needed to ascertain that fact and none were taken. Accordingly, a rural area flexibility analysis is not required and one has not been prepared.
Job Impact Statement
The proposed amendment relates to appeals to the Commissioner of Education pursuant to Education Law §§ 310 and 2853(3)(a-5) relating to New York City charter school location/co-location and building usage plans. Education Law § 2853(3)(a-5) requires that petitions in such appeals must be dismissed, adjudicated or disposed of by the Commissioner within ten days of the receipt of the New York City School District's response. The proposed amendment modifies existing notice, service and filing requirements in Parts 275 and 276 of the Commissioner's Regulations, relating to appeals to the Commissioner pursuant to Education Law § 310, to provide for such expedited appeals consistent with statutory requirements. The proposed amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the amendment that it will have a positive impact, or no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
