IN THE MATTER

 

of                                                                                DECISION 

THE COMPLAINTS OF M****** S******, A****** A******, M****** D******, D****** H******, B****** H******, D****** H******, P****** R******, T.P, K****** K******, J****** M******, K****** M******, P****** H******, K****** D******, D****** D******, N****** M******, M****** B******, T****** H******, D****** S******, A****** H******, F****** M******, GLOBAL CONCEPTS, INC. AND GLOBAL CONCEPTS CHARTER SCHOOL SCHOOL ADVISORY COUNCIL, CONCERNING GLOBAL CONCEPTS CHARTER SCHOOL. 

                                 

 

Education Law §2855(4) provides that any individual or group may bring a complaint to a charter school’s board of trustees alleging a violation of Education Law Article 56, the charter school’s charter, or any other provision of law relating to the charter school’s management or operation.  If the complainant subsequently determines that the charter school’s board did not adequately address the complaint, the complainant may present the complaint to the charter school’s charter entity, which must investigate and respond.  In this case, the Board of Regents is the charter entity for the Global Concepts Charter School (“the charter school”).  Section 3.16 of the Rules of the Board of Regents delegates from the Regents to the Commissioner of Education the authority to receive, investigate, and respond to complaints, and issue appropriate remedial orders pursuant to Education Law §2855(4).  This decision is issued pursuant to that authority.

 

     Between November 2003 and January 2004, the Board of Regents received complaints from 20 individuals and two organizations against the charter school and its board of trustees (“Board”).  These complaints have been consolidated for decision.

 

Complaint of M****** S******

 

     Ms. S****** asserts that in the Fall of 2003, the charter school violated its charter by discontinuing character education, career education, and home-life classes that were all part of the curriculum in the approved charter.  The charter school contends that the focus of the curriculum was modified to concentrate more on English Language Arts, Math, and Science, but that character education, career education, and home-life are now integrated throughout the curriculum.  The charter school maintains that these changes were necessary because its students were not performing well in English Language Arts, Math, and Science. The charter school submitted an affidavit from its principal demonstrating that character education, career education, and home-life are, in fact, still part of the curriculum.

 

     Section 2.6 of the charter agreement between the Board of Regents and the school provides:

 

The curriculum established by the Charter School shall be consistent with the model curriculum set forth in the Application.  The Charter School shall have the right to make reasonable modifications to such curriculum to permit the school to meet its educational goals and student achievement standards.  However, such modifications shall not be, either individually or cumulatively, of such a nature or degree as to cause the approved curricula as set forth in the Application to no longer be in operation.  The approved curricula shall not be abandoned or substantially modified, and additional curricula shall not be adopted or implemented, without the prior written approval of the Regents in accordance with Education Law §2852(7).

 

Under this provision, the charter school has discretion to make reasonable modifications to its curriculum to meet its educational goals and student achievement standards.  The changes described in the principal’s affidavit are consistent with this discretion.  Accordingly, I find that the modifications to the curriculum did not violate the charter.

 

Ms. S******’s complaint to the Board of Regents includes additional allegations concerning the charter school’s conduct.  I will not address these allegations because there is nothing in the record indicating that Ms. S****** initially brought these complaints to the Board in accordance with Education Law §2855(4).

 

Complaint of A****** A******

 

     Ms. A******’s complaint consists of a number of allegations concerning financial matters.  The charter school contends that her complaints are conclusory and unsubstantiated, and fail to allege a violation of the charter or law. 

 

I find that Ms. A****** has not established a violation of the charter or law. She claims the Board has not acted responsibly with respect to school finances in several areas.  However, she has not supported these claims with any documentation.  Moreover, although she refers to several provisions of the charter, she never explains how the charter school has allegedly violated these provisions.  I note that State Education Department (“SED”) staff monitors the fiscal status of all charter schools, and the extent to which the school has been operated in a fiscally sound manner will be examined if the school seeks to renew its charter.

 

Complaint of M****** D******

 

Mr. D****** complains that the charter school employed a custodian who was not cleared for employment by SED based on a criminal history records check.  He also alleges that the charter school is not offering a Bosnian language class in violation of a May 15, 2002 amendment to the charter.

 

The charter school concedes that it employed a custodian who had not been cleared for employment by SED based on a criminal history records check.  It asserts that the individual was employed as a substitute for only one day and without the Board’s knowledge.  It further contends that when the mistake was discovered the individual was removed from the charter school’s substitute teaching list.

 

With certain exceptions not applicable here, charter schools may not employ a prospective employee until the employee has been cleared for employment by the Department based on a criminal history records check of the applicant (Education Law §§2854[3][a-2], 3035). The charter school violated the Education Law by hiring the employee prior to receiving such clearance from SED.    The law concerning criminal history record checks helps ensure school safety.  The charter school should have in place procedures ensuring that employees are not employed, even for one day, until after the proper clearance.  The charter school is reminded of the need to ensure that such procedures are in place.  Future violations of this law may subject the charter school to consequences pursuant to §2855 of the Education Law, including revocation of the School’s charter.  

 

With respect to the elimination of the Bosnian class, in May 2002 the Board approved the creation of a position for a part-time Bosnian language instructor to address a request for such instruction by the parents of students who were planning to attend the school.  Contrary to Mr. D******’s allegations, this did not result in an amendment to the school’s charter.  Specific class offerings do not generally require a charter amendment and thus no such amendment was submitted to the Board of Regents regarding Bosnian instruction.  The charter school submitted a letter stating that the demand for a Bosnian class was less than expected and the school had difficulty recruiting a part-time Bosnian language teacher.  However, the former principal of the school taught a Bosnian language class in addition to her other responsibilities.  After the termination of her employment, the charter school enlisted the services of a teacher at the school to teach Bosnian and the class resumed in January 2004.  Mr. D****** has not refuted these facts or otherwise established a violation of the law or the charter.

 

Complaint of D****** H******

 

     Mr. H******’s complaint states that the Board “spen[t] thousands of dollars for training, which included attending a retreat at a local hotel, where they could have driven daily.”  His complaint, however, does not contain any documentation or further details.  Thus, his complaint fails to establish a violation of the law or the charter school’s charter.

 

Complaint of B****** and D****** H******

 

Mr. and Mrs. H****** allege that Dawan Jones, a member of the Board, is related to Mary Henley, an individual who was hired by the charter school as a part-time aide on August 27, 2003.  They further allege that Mr. Jones participated in the vote to hire Ms. Henley in violation of the conflict of interest policy in the charter school’s charter which provides that any trustee “shall be excused from the discussion of and shall abstain from voting on any...matter involving...a conflict of interest.”

 

They also allege that William Minniefield, the president of the Board, is related to Rosemary Pavicich, an individual who was hired by the charter school as a part-time aide on August 27, 2003.  They also assert that Mr. Minniefield’s wife is Jane Minniefield, who was appointed by the charter school to record the minutes of the Board’s meetings.  They further allege that Mr. Jones participated in the votes to hire Ms. Pavicich and Ms. Minniefield in violation of the charter school’s conflict of interest policy.

 

The charter school submitted an affidavit from Mr. Jones stating that he is not in any way related to Ms. Henley.  The complainants have not submitted any contrary evidence.  Accordingly, I find that the complainants have not established a violation of the charter school’s conflict of interest policy with regard to the first alleged conflict.

 

The charter school submitted an affidavit from Mr. Minniefield with respect to the second alleged conflict.  He states that Ms. Pavicich is his brother’s wife, and admits that Ms. Minniefield is his wife, but alleges he did not participate in the votes to approve their employment.  Complainants correctly point out that the minutes of the meetings for those votes do not indicate whether Mr. Minniefield participated, but they fail to submit any affidavits or other conclusive proof to show that he did.  Based on Mr. Minniefield’s sworn testimony that he did not participate in those votes, and the absence of any affidavits to the contrary, I find that complainants have not established a violation of the conflict of interest policy.  However, the Board is advised that in the future, the minutes of its meetings should clearly indicate which Board members participated in the discussion of, and vote on, a particular item.

 

Complaint of P****** R******

 

     Ms. Rozwood complains about the elimination of the Bosnian language class.  She also asserts that the Board scheduled meetings in violation of the Open Meetings Law.  She further asserts that the Board’s cancellation of its September 2003 board meeting resulted in a violation of the by-laws set forth in the charter which provide that “[r]egular meetings shall be held monthly throughout the year and other times as the Board determines.” 

    

I have already addressed the Bosnian class in the context of the complaint of M****** D******.

 

I do not have jurisdiction to respond to Ms. R******’s allegation that the charter school violated the State’s Open Meetings Law.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York.  I have, therefore, declined to adjudicate such disputes in appeals to the Commissioner under Education Law §310 (See e.g. Appeal of Stolbach, 43 Ed Dept Rep 218, Decision No. 14,977).  I am similarly constrained from addressing these issues in the context of a complaint under Education Law §2855(4).

 

The charter school submitted an affidavit from Mr. Minniefield with respect to the allegation that the Board failed to meet in September 2003.  He states that the regular meeting of the Board was scheduled for September 24, 2003.  However, before the meeting, it was discovered that a majority of the trustees would not be able to attend because they would be out of town for work-related reasons.  The charter school’s by-laws require the adjournment of any meeting where there is less than a quorum which is defined as a majority of the trustees.  Therefore, since the meeting was required to be adjourned for lack of a quorum, the meeting was cancelled.  On October 3, 2003, Mr. Minniefield called a special meeting of the Board to be held on October 9, 2003.

 

I find that under these circumstances, the Board did not violate its by-laws.  The September meeting was cancelled for legitimate reasons, and the board ameliorated the impact of the cancellation of that meeting by scheduling a special meeting shortly thereafter.

 

Complaint of T.P.[1] 

 

T.P. alleges the charter school violated the Open Meetings Law on a number of occasions.  She also alleges that the charter school did not provide her child with physical therapy ("PT") and occupational therapy ("OT") services for the first month of the 2003-2004 school year in violation of the Individuals with Disabilities Education Act ("IDEA"). 

    

As discussed above, I do not have jurisdiction to investigate claims that the school violated the Open Meetings Law.

 

     A charter school is responsible for implementation of a student's Individualized Education Program ("IEP") in compliance with all federal laws and regulations relating to students with disabilities (Education Law §§2851[2][s] and 2853[4]).  From the record, it appears that T.P.'s son was entitled to OT and PT at the beginning of the 2003-2004 school year under an IEP. 

 

     The charter school admits that OT and PT services were delayed by one month due to a change in providers and the new provider's need to obtain a prescription for services.  Evidently the charter school did not provide or otherwise make arrangements for a prescription to be sent to the provider.  Instead, the provider requested a new prescription from the parent.

 

     The charter school is responsible for implementing the IEP as written (Education Law §2853[4]).  In this case, the charter school should have given a prescription to the provider when requested, or obtained another copy of the prescription from the student's school district of residence.  The onus should not have been on the parent to obtain a new prescription.  I therefore find that the charter school failed to comply with the federal law and regulations regarding the timely implementation of the student's IEP for the first month of the 2003-2004 school year (see, 34 CFR §300.342).

 

     As to remedy, T.P.'s complaint seeks removal of the Board.  While there was a delay in the delivery of OT and PT services during September 2003, the services were provided beginning in October 2003.  Moreover, it does not appear that the deprivation of services was intentional on the part of the Board sufficient to warrant removal.  I remind the Board, however, of the need to ensure the timely delivery of all IEP services in the future.

    

     Although T.P. does not seek compensatory services, she may request such relief by filing a complaint with the New York State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities ("VESID") within three years of the denial of services (see 34 CFR §300.662).

  

Complaint of K****** K******

 

     Ms. K****** alleges that construction at the school in September 2003 resulted in air contaminants amounting to safety and health violations.  The charter school submitted a letter addressing in detail the steps it took to address concerns raised in September of 2003 about possible construction dust.  The steps included retaining an outside contractor to inspect the site for the presence of air contaminants. 

 

SED wrote to Ms. K****** asking her whether the letter from the charter school adequately addressed her concerns, and, if not, to specify the provision of law or charter she claims to have been violated.  Ms. K****** did not submit any further information.  Accordingly, I find that she has not established a violation of law or the charter.

 

Complaint of P****** H******

 

     P****** H****** alleges that the Board violated its charter by hiring employees who were not recommended by the school’s principal.  He further alleges that a trustee, Dawan Jones, violated the charter when at a Board meeting he stated “those employees and contractors that do not show respect to the Board will be looking in other directions.”  He also claims that Mr. Jones, who is employed by the City of Lackawanna Police Department, violated the charter school’s conflict of interest policy by voting on the appointment of security officers for the school who are also employed by the City of Lackawanna Police Department.  The charter school asserts that Mr. H******’s allegations are factually inaccurate and, in any event, do not constitute violations of the charter.

 

     Mr. H****** points to sections of the charter that describe the responsibilities of the principal and state that the principal “will recommend for employment or dismissal teachers and administrative staff” and will “[r]ecruit, select, and hire school staff.”  He argues that these provisions restrict the Board from making any hiring decisions without the principal’s approval.  I disagree.  The provisions Mr. H****** refers to, on their face, do not restrict the Board’s authority to hire employees.  Rather, the provisions simply describe the duties of the principal.   Moreover, the school’s by-laws state that the Board has the power “to select and remove officers, agents and employees.”  Nothing in the charter limits this broad authority.

 

     Mr. H****** contends that Mr. Jones’ alleged comment that “those employees and contractors that do not show respect to the Board will be looking in other directions” violates a provision in the charter stating that “[h]armony and a positive learning climate for personal and professional growth will be a goal that staff, administration and the Board of Trustees are held accountable for.”  I disagree.  The charter provision simply sets forth a goal of the school.  It does not, in any way, restrict the conduct or speech of a Board member at a Board meeting.

 

     With respect to the alleged conflict of interest, Mr. H****** does not explain how Mr. Jones violated the charter school’s conflict of interest policy by voting on the appointment of security officers for the school who are also employed by the City of Lackawanna Police Department.  Although Mr. Jones is employed by the City of Lackawanna Police Department, there is no evidence that he is related to any of the appointed security personnel or that he in any way benefited by their employment.  Accordingly, I find that Mr. Harding has not established a violation of law or the charter.

 

Complaint of K****** D******

    

     Dr. D******, the former principal of the school, complains that there were no grounds for the Board to terminate her employment on October 9, 2003.  The charter states that the “[t]he principal/CEO shall be appointed by majority vote of the Board of Trustees, and shall serve at their pleasure (subject to any limitations imposed by any contract entered into between [the charter school] and the individual selected as Principal/CEO.”  Dr. D****** does not assert that she entered into a contract that limits the Board’s discretion to terminate her employment.  To the contrary, on June 18, 2002, Dr. D****** signed a document entitled “Notice of Full-Time Expected Employment for 2002-2003” which states that “[t]he employee acknowledges that he or she is a full-time employee, is an employee at will, and that this notice of expected employment does not create a guarantee of employment or employment for the entire school year.”  She further acknowledges that at the time of her termination in October 2003, she was not working under a contract with the charter school.  Accordingly, she has not established that the termination of her employment in any way violated the charter or any applicable law.

 

     Dr. D******’s complaint to the Board of Regents contains a number of additional allegations.  I will not address these allegations because there is nothing in the record indicating that she initially brought these complaints to the Board in accordance with Education Law §2855(4).

 

Complaint of J****** and K****** M******

 

     Mr. and Mrs. M****** allege that Dr. D****** was improperly terminated.  This allegation was addressed above.

 

Complaint of D****** D******

 

     Ms. D******’s complaint asserts that Dr. D******’s employment was unfairly terminated and that the Bosnian language class was improperly eliminated.  She also alleges that the individual who assumed the position as acting principal in the Fall of 2003 yelled at her daughter and would not allow her daughter to go to the bathroom during class.

 

     I have addressed the issues of the termination of Dr. D******’s employment and the Bosnian class above.  Ms. D******’s allegations concerning the acting principal’s treatment of her daughter, even if true, do not amount to a violation of the charter or law.  I note that in the course of investigating Ms. D******’s complaint, SED staff asked the charter school for an explanation of its bathroom policy even though the allegations, on their face, did not appear to allege a violation of the charter.  The charter school explained that students are expected to use the restroom before and after class, but that students may use the restroom during class in the case of an emergency.  The acting principal asserts that she adhered to this policy at all times.

 

Complaint of N****** M******

 

     Mr. M****** complains about the elimination of the Bosnian language class and the charter school’s alleged policy of not allowing children to go to the bathroom during class.  Both of these issues have been addressed above.

 

Complaint of M****** B******

 

Ms. B****** asserts that the charter school failed to competitively bid its contracts for cleaning services in violation of the charter’s request for proposal process.  The charter school submitted the minutes of Board meetings and copies of cleaning bids demonstrating that the school competitively bid all cleaning services.  Ms. B****** did not submit any evidence to refute this documentation. 

 

Ms. B****** also asserts that the charter school employed as a cleaner a custodian who had been fired from a previous position based on “drug-related charges.”  The charter school states that on one occasion its administrators received information that an individual employed by an outside cleaning contractor was arrested for drug-related charges.  This individual worked at the school one night.  When the charter school’s administrators asked the contractor about the allegations, they were informed that the individual no longer worked for the contractor.  These facts do not form the basis for a finding that a violation of the law or charter occurred. 

 

Complaint of T****** H******

 

     Ms. H****** complains that the Board did not respond adequately to the possibility of air contamination resulting from construction at the school in September 2003.  That issue has already been addressed in the context of the K****** complaint.

 

     She also complains that the Board violated the Open Meetings Law.  As discussed above, I do not have jurisdiction to investigate claims that the school violated the Open Meetings Law.

 

     She further asserts that the Board violated the provision of the school’s charter providing that the Board must review the school’s financial statements on a monthly basis. The charter school concedes that it did not review the financial statements on a monthly basis prior to October of 2003, but has since done so in accordance with the charter.  The charter school contends that it was unable to review such reports before October 2003 due to the malfeasance of the former principal of the school and an administrative assistant who reported to that principal. 

 

     I find that the complaint is moot due to the unrefuted evidence submitted by the charter school that the Board is now complying with the charter’s requirement that the school’s financial reports be reviewed on a monthly basis.  There is no additional meaningful relief that I could order at this point.  As I noted above, SED staff monitors the fiscal status of all charter schools, and the extent to which the school has been operated in a fiscally sound manner will be examined if the school seeks to renew its charter.

    

Complaint of D****** S******

 

     Ms. S****** complains that the charter school violated the charter by discontinuing character education, career education, and home-life classes which were all part of the curriculum in the approved charter, and that the Board did not respond adequately to the possibility of air contamination resulting from construction at the school in September 2003.  Both of these issues have been addressed above.

 

     Ms. S****** also raises a number of additional concerns.  For example, she complains about the Board’s decision to dissolve the School Advisory Council.  She has not, however, articulated how these concerns violate the law or the charter, and/or demonstrated that she initially brought these complaints to the Board in accordance with Education Law §2855(4).

 

Complaint of A****** H******

 

     Ms. H****** complains that the Board held a meeting in violation of the Open Meetings Law.  As discussed above, I do not have jurisdiction to investigate claims that the school violated the Open Meetings Law.

 

Complaint of F****** M******

 

     Mr. M****** complains that the charter school did not have an English as a Second Language (ESL) teacher for a period of time in the Fall of 2003.  He claims this violated the charter’s requirement that the school employ an ESL teacher. 

 

     The charter school submitted a letter explaining that on or about October 20, 2003, the charter school’s ESL teacher provided two weeks' notice that she intended to leave employment on November 3, 2003.  The vacancy was immediately advertised and a new ESL teacher began employment on November 17, 2003.  The new ESL teacher provided make-up instruction for the time the school was without an ESL teacher.  Mr. M****** has not disputed these facts.  Under these circumstances, I cannot find a violation of law or the charter.  

 

Complaints of Global Concepts, Inc. and Global Concepts Charter School School Advisory Council

 

     Two organizations, Global Concepts, Inc. and Global Concepts Charter School School Advisory Council, have also filed complaints containing a number of allegations.  I have reviewed these allegations and have determined that they have been addressed above and/or do not allege violations of the charter or law.

 

     THE COMPLAINT OF T.P. IS SUSTAINED TO THE EXTENT INDICATED. 

 

     THE REMAINING COMPLAINTS ARE DISMISSED.

 

     IT IS ORDERED that the Global Concepts Charter School ensure the timely implementation of IEP services in accordance with federal laws relating to students with disabilities.

 

 

IN WITNESS WHEREOF, I, Richard P. Mills, Commissioner of Education of the State of New York for and on behalf of the State Education Department, do hereunto set my hand and affix the seal of the State Education Department, at the City of Albany, this         day of                  , 2005.

 

Commissioner of Education