EDU-52-10-00012-P Appeals to Commissioner of Education Relating to New York City Charter School Location/Co-Location and Building Usage Plans

12/29/10 N.Y. St. Reg. EDU-52-10-00012-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 52

December 29, 2010

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-52-10-00012-P

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 proposed rule:

Proposed Action:

Amendment of Parts 275 and 276 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

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 proposed rule (Full text is posted at the following State website: http://www.counsel.nysed.gov/ rulesandregs/):

The Commissioner of Education proposes to amend Parts 275 and 276 of the Commissioner's Regulations, effective March 30, 2011, 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 proposed amendment.

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.

Text of proposed 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, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Erin M. O'Grady-Parent, Acting Counsel, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

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, record keeping 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.